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Federal Circuit Nightmare in CLS Bank v. Alice Corp.

Well, the United States Court of Appeals for the Federal Circuit sort of decided CLS Bank v. Alice Corporation earlier today. Truthfully, all the important questions that we thought might be answered remain completely and totally unanswered because there were only 10 judges who sat on the en banc tribunal and no more than 5 judges signed on to any one opinion.

The only thing we know is this — the Federal Circuit issued an extraordinarily brief per curiam decision, which stated:

Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101. An equally divided court affirms the district court’s holding that the asserted system claims are not directed to eligible subject matter under that statute.

Thus, all of the asserted claims are not patent eligible. At the moment I am completely flabbergasted and don’t know what to say.

Let’s take a look at one particular representative asserted claim, Claim 33 of U.S. Patent No. 5,970,479:

A method of exchanging obligations as between parties, each party holding a credit record and a debit record with an exchange institution, the credit records and debit records for exchange of predetermined obligations, the method comprising the steps of:

(a) creating a shadow credit record and a shadow debit record for each stakeholder party to be held independently by a supervisory institution from the exchange institutions;

(b) obtaining from each exchange institution a start-of-day balance for each shadow credit record and shadow debit record;

(c) for every transaction resulting in an exchange obligation, the supervisory institution adjusting each respective party’s shadow credit record or shadow debit record, allowing only these transactions that do not result in the value of the shadow debit record being less than the value of the shadow credit record at any time, each said adjustment taking place in chronological order; and

(d) at the end-of-day, the supervisory institution instructing ones of the exchange institutions to exchange credits or debits to the credit record and debit record of the respective parties in accordance with the adjustments of the said permitted transactions, the credits and debits being irrevocable, time invariant obligations placed on the exchange institutions.

The 5 judge concurring opinion written by Judge Lourie found that there is “nothing in the asserted method claims represent significantly more than the underlying abstract idea for purposes of § 101.” Chief Judge Rader and Judge Moore agreed that the method and media claims are patent ineligible. Therefore, there is a majority of thought (although not opinion) with respect to the above representative method and media claims.

The Road Forward: Software Patents in the Post-Alice MarketJoin Gene Quinn and Scott Alter for a discussion on patent eligibility, techniques for claiming software, prosecution strategies and more. Wednesday, March 4, 2015 at 12pm ET ~ CLICK HERE to REGISTER

The other claims in the asserted patents are patent ineligible because that is what the district court held and there was a 5 to 5 split.

Judges Linn, O’Malley and Newman would have found all of the asserted claims patent eligible.

But let’s look at a representative claim on which there is no Federal Circuit decision — claim 1 of U.S. Patent No. 7,725,375, which recites:

A data processing system to enable the exchange of an obligation between parties, the system comprising:

a first party device,

a data storage unit having stored therein

(a) information about a first account for a first party, independent from a second account maintained by a first exchange institution, and

(b) information about a third account for a second party, independent from a fourth account maintained by a second exchange institution;

and a computer, coupled to said data storage unit, that is configured to

(a) receive a transaction from said first party device;

(b) electronically adjust said first account and said third account in order to effect an exchange obligation arising from said transaction between said first party and said second party after ensuring that said first party and/or said second party have adequate value in said first account and/or said third account, respectively; and

(c) generate an instruction to said first exchange institution and/or said second exchange institution to adjust said second account and/or said fourth account in accordance with the adjustment of said first account and/or said third account, wherein said instruction being an irrevocable, time invariant obligation placed on said first exchange institution and/or said second exchange institution.

How about claim 26 of the ‘375 patent:

A data processing system to enable the exchange of an obligation between parties, the system comprising:

a communications controller,

a first party device, coupled to said communications controller,

a data storage unit having stored therein

(a) information about a first account for a first party, independent from a second ac- count maintained by a first exchange institution, and

(b) information about a third account for a second party, independent from a fourth account maintained by a second exchange institution; and

a computer, coupled to said data storage unit and said communications controller, that is configured to

(a) receive a transaction from said first party device via said communications controller;

(b) electronically adjust said first account and said third account in order to effect an exchange obligation arising from said transaction between said first party and said second party after ensuring that said first party and/or said second party have adequate value in said first account and/or said third account, respectively; and

(c) generate an instruction to said first ex- change institution and/or said second ex- change institution to adjust said second account and/or said fourth account in accordance with the adjustment of said first account and/or said third account, wherein said instruction being an irrevocable, time invariant obligation placed on said first exchange institution and/or said second exchange institution.

I have added emphasis added to point out all of the specifically recited structure and tangible components, which unequivocally show that this claim is tethered to a machine. Notice how the computer is also recited as specifically configured.

Chief Judge Rader and Judge Moore would write: “Looking at these hardware and software elements, it is impossible to conclude that this claim is merely an abstract idea.” They are, of course, correct.

What Next?

Chief Judge Rader correctly points out in his dissent, which was joined by Judge Moore, that if all of the asserted patents in this case are invalid that will mean that hundreds of thousands of patents are now lost. He wrote:

[I]f all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents.

For the life of me I can’t understand how it is fair to be judging these patents based on the disclosure standards and patent eligibility standards of today anyway. These were written 5, 10, 15 years ago or more when far less was required. Judging innovations based on a moving target is fundamentally unfair to start with, but coming up with a tie is unconscionable.

Obviously, this article is not intended to be an exhaustive treatment of the issue. If you count Chief Judge Rader’s “additional reflections,” there are 7 opinions in all, with the majority of the 10 member tribunal agreeing only on the above paragraph. All of the opinions cover some 135 pages and will take time to thoughtfully unpack and digest. That process starts now.

You can rest assured I will write more once I feel like I have a grasp on what has happened. For now suffice it to say that based on the length of the opinions and the way they are written it seems as if the Federal Circuit feels the Supreme Court will likely weigh in on this issue. While I shutter to think about the Supreme Court taking on a patent issue I think it is virtually inevitable in this case. There simply cannot be a tie with respect to the law as it applies to software and computer implemented technologies. How is the Patent Office supposed to process this decision? How are patent examiners supposed to apply this monstrosity? How are patent practitioners supposed to write patent applications covering these important innovations?

Everyone would do well to seriously what Judge Newman wrote. She points out the obvious: “[T]he en banc court undertook to remedy distortions flowing from inconsistent precedent on section 101. This remedial effort has failed.”

Judge Newman also wrote:

Reliable application of legal principles underlies the economic incentive purpose of patent law, in turn implementing the benefits to the public of technology-based advances, and the benefits to the nation of industrial activity, employment, and economic growth. Today’s irresolution concerning section 101 affects not only this court and the trial courts, but also the PTO examiners and agency tribunals, and all who invent and invest in new technology. The uncertainty of administrative and judicial outcome and the high cost of resolution are a disincentive to both innovators and competitors.

Judge Taranto did not participate in the decision and several more judicial nominees await confirmation in the United States Senate. What does the future hold? Who knows! Now more than ever it seems that with respect to software patents the outcome is 100% dependent on the panel drawn at the Federal Circuit. Talk about arbitrary justice!

The Author

Gene Quinn
is a patent attorney and the founder of IPWatchdog.com. He is also a principal lecturer in the PLI Patent Bar Review Course, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam.

Gene’s particular specialty as a patent attorney is in the area of strategic patent consulting, patent application drafting and patent prosecution. He has worked with independent inventors and start-up businesses in a variety of different technology fields.

Gene is admitted to practice law in New Hampshire, is a Registered Patent Attorney licensed to practice before the United States Patent Office and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. As a patent attorney he is able to represent inventors and businesses seeking patents across the United States.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 355 Comments comments.

ElizaMay 10, 2013 2:15 pm

It seems to me that the computer, data storage, and first party device are all extrasolutional and therefore do not make the claim patent eligible. There is no algorithm claimed to perform any of the 3 functions of recieving, adjusting, or generating an instruction, so the computer is not a ‘specific’ machine with specific utility.

Readers will remember I have two earlier postings on this topic and forecast the outcome so far. My next forecast is that this will go to the Supremes.

Can anyone tell me the difference between the claims here and those in Bilski? The panel decision, I think, was good useful reasoning applied to a weak case.

MoocowMay 10, 2013 3:19 pm

What struck me most is that the judges don’t seem to be at all all struggling with the technology, or with the claims in this case. The ONLY things they’re struggling with – and have been struggling with all along – are the unclear, internally inconsistent directives from the Supreme Court that they’re somehow tasked with implementing.

AnonMay 10, 2013 4:14 pm

“Fractured” doesn’t even begin to cover this mess.

I wonder if this was purposefully done in order to punt it up to the Supreme Court with the thought “We are tired of expending effort that you throw out anyway – you guys F*d up 101 – you guys fix it.”

AnonMay 10, 2013 4:16 pm

The other thought that occurs to me: The last time a cluster like this was pronounced (in re Bilski), the Supremes basically went with what (now) Chief Judge Rader said.

Maybe they will pay attention to his views once again…

patent leatherMay 10, 2013 5:24 pm

I am flabbergasted as well. The majority of my practice relates to prosecuting methods performed on computers. So is everything I have gotten issued invalid? Do I now lose my entire practice? As the dissent states, are hundreds of thousands of patents now invalid?

I guess what really matters is what the USPTO does with this decision. Since there wasn’t really a majority, hopefully they do absolutely nothing with it.

Bud359May 10, 2013 5:28 pm

I wonder if it would have made a difference if the “data storage unit” was claimed as a “data storage unit including a tangible non-transitory computer-readable medium” for purposes of 101.

Lately, I’ve been claiming both a computer and a” tangible non-transitory computer-readable medium” when possible.

AnonMay 10, 2013 5:52 pm

What were the words signifying Precedence?

“No portion of any opinion issued today other than our Per Curiam Judgment garners a majority, The court is evenly split on the patent eligibility of the system claims. Although a majority of the judges on the court agree that the method claims do not recite patent eligible subject matter, no majority of those judges agrees as to the legal rationale for that conclusion. Accordingly, though much is published today discussing the proper approach to the patent eligibility inquiry, nothing said today beyond our judgment has the weight of precedent.” (emphasis added).

As the per curiam judgment is confined SOLELY to the claims at hand, this case cannot even be used as precedent in another case before the CAFC, let alone used for anything by the Office.

Gene QuinnMay 10, 2013 5:55 pm

Anon-

The Supremes have been known to favor Judge Newman and Chief Judge Rader.

I don’t know that I think this was purposefully done, but if it does go up, which I expect it will, maybe the Supremes will be forced to say more than machine or transformation is a useful test!

-Gene

DorkmunderMay 10, 2013 5:56 pm

From p. 29, fn 7: “Everything done by a computer can be done by a human.”

I’d like to see a human process enough information fast enough to provide real-time GPS navigation of a missile.

Martin SnyderMay 10, 2013 6:00 pm

Awww somebody’s ENTIRE PRACTICE is lost, notwithstanding that the fruits of that practice are a likely a bunch of rent-seeking grabs at obvious ideas and “inventions” that are unworthy of a monopoly for a month, let alone 17 years…..

Patents are important for serious inventions – not ANY invention of any character….square the obvious absurdities (as the panel tried to do) in today’s actual patent world and there might be some sympathy….Patents are not designed to protect the first person who ever does anything…..

jesseMay 10, 2013 8:51 pm

“At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility.”

Finally, at least one judge gets it right.

Wayne BoreanMay 10, 2013 9:06 pm

Chief Judge Rader and Judge Moore would write: “Looking at these hardware and software elements, it is impossible to conclude that this claim is merely an abstract idea.” They are, of course, correct.

Ah, but you aren’t following the logic. Have you ever read Lewis Carroll’s books on Logic? You really should. They are available on Project Gutenberg.

The simple logic is, CAN YOU DO THE JOB WITHOUT A COMPUTER? In this case you most certainly can, and banks did, and were still doing so when I first started working. Paperwork was manually transferred, or faxed. It was kept in data storage silos, otherwise known as filing cabinets, and moved from place to place for operations to be performed on it by biological computers, usually of the female persuasion, wearing short skirts. At eighteen I really noticed the short skirts.

Now as to all those patents that may have been issued erroneously, when the Volstead Act was passed, did the distilleries receive recompense?

I agree, the entire thing is an awful mess. Just ask Research in Motion, and the other companies which ended up paying for patents that today may be invalid.

Wayne

Gene QuinnMay 10, 2013 9:25 pm

@Dorkmunder

Excellent comment! That is exactly why the law simply cannot be about whether or not the method can be performed without a computer. It is old, tired and intellectually dishonest to say that software processes can be done with pen and paper. For many processes you simply cannot accomplish the task in a time frame useful enough to have it be feasible without a machine. For many processes you cannot accomplish the tasks by hand even during a single lifetime.

I was speaking at a conference last week and made nearly the same observation you make here. GPS navigation simply can’t be done by a human, period. The judges on the CAFC who wrote that nonsense are no doubt proud of themselves, but the reality is that many processes won’t be carried out because it is too cumbersome and unattainable.

-Gene

amarodoggeryMay 10, 2013 9:26 pm

Well Well, when the courts start to see the light the criminals scurry away and hide under the next appeal courts decision. That wont work out as the criminals know that this court was helping them with their extortion and the next court and the supreme court drives them down to where they should be. Their cowardly acts of getting legislators who should know better to pass vague uncertain laws then appoint inside people to give opinion that gives criminals power should be stopped and that is what the courts are now waking up to. Do you want the next 10 years to be marked by foreign powers exceeding us in technology? cause thats were this patent insanity is taking the US now. The courts are now starting to wake up and take notice and see, really see the actors in this space and they are not impressed.

Gene QuinnMay 10, 2013 9:29 pm

@Jesse

The comment you select demonstrates that you don’t really understand the issues at all. Neither did the judge who wrote that.

Patents have ALWAYS been granted on improved processes and one way processes have always been considered innovative is to accomplish a task faster.

The decision by Judge Lourie flies in the face of two centuries of patent jurisprudence and ignores, or misrepresents, what the Supreme Court state in Bilksi, at least with respect to the system claims. The system claims here have all kinds of structure, are tethered to a specific machine and are patentable by any fair understanding of the patent laws.

-Gene

Gene QuinnMay 10, 2013 9:34 pm

Wayne-

The fact that the job can be done without a computer is completely irrelevant.

Cars can be put together without the use of an assembly line, so does that mean that the processes used in an assembly line are not patentable?

Under this logic then robots aren’t patentable either because humans could do what robots do. Robots only do it faster and cheaper.

Power generators aren’t patentable either because, as the ESPN commercial teaches, you can just hook up Lance Armstrong to a bicycle and generate power. So if a human can do it no matter how slow then the resulting innovation can’t be patentable.

We can go on and on. The logic used by the 5 judges is irrational, shows a complete lack of understanding of innovation and patent laws, and isn’t tethered to reality. Based on this logic millions of patents would be invalid because the processes or machines merely do what a human could do.

Ridiculous.

-Gene

Mark NowotarskiMay 10, 2013 9:37 pm

“At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility.”

Finally, at least one judge gets it right.

No, at least one judge got it wrong. What physically happens inside a computer is very different than what physically happens inside a human brain. Computers do not do “calculations”. We merely interpret what they do as calculations. If you want to see where the analogy breaks down, looking into computational fluid dynamics and the challenges of rounding errors.

Mark NowotarskiMay 10, 2013 9:48 pm

For many processes you simply cannot accomplish the task in a time frame useful enough to have it be feasible without a machine.

Gene,

It’s not just a matter of reasonable time. There is also the issue of accuracy. At least since the 1970’s humans have not been physically able to fly fighter jets. The computers fly the jets. If the computers crash, the plane crashes.

NWPAMay 11, 2013 4:39 am

“For many processes you cannot accomplish the tasks by hand even during a single lifetime.”

All software can be done by a paper and pencil as a result of the Church Turing Thesis. So, essentially what you have is input and output devices and then methods that are performed by hardware/software (and can be split up in almost anyway between the two). The methods can be performed by pencil and paper. That is a simple result of the Church Turing Thesis that purports that any computable function can be computed by a Turning machine. This would include the methods that Judge Lourie used inside his head to write the opinion in CLS Bank.

But, I think the point is that the methods are designed for computers. The methods are new and invented (not discovered). The methods are not mathematical formulas, they are not abstract ideas, and they are not natural laws. They are methods of processing information that are invented for computers. A good example of this is kd-trees. A structure that is used for ray tracing and simulating the universe. These trees take the time from to perform these tasks from n squared to n log n. This change made it possible to simulate the universe. Kd-trees would never be invented for people to perform (just as the method in Deener would never be performed by people as it was designed for machines, but could be performed by people.) So, the information processing methods are invented methods to be performed by machines. They are improvements of the computer and methods to be performed by the computer. They are both because the hardware and software can be interchanged.

But, all that aside, this opinion is really not much different then Bilski. It has just added this new twist that you have to determine unambiguously what abstract concept is being applied and then determine whether or not an “inventive concept” was applied to the abstract idea. The “inventive concept” is something that should be over turned at the SCOTUS.

And, one last note, everyone should read the part in the dissent about the hot air injected into the furnace. This goes from the abstract idea to structure, then back to the abstract idea. The SCOTUS realized that it didn’t really matter the exact structure of how it was done. This is a very similar result as in Deener.

andrewMay 11, 2013 5:58 am

“For the life of me I can’t understand how it is fair to be judging these patents based on the disclosure standards and patent eligibility standards of today anyway. These were written 5, 10, 15 years ago or more when far less was required. Judging innovations based on a moving target is fundamentally unfair to start with, but coming up with a tie is unconscionable.”
…All new judgements/precedents and all new laws are ‘unfair’ to someone.

From the judgement pg 27
“Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility. In short, the requirement for computer participation in these claims fails to supply an “inventive concept” that represents a nontrivial, nonconventional human contribution or materially narrows the claims relative to the abstract idea they embrace.”

On the face of it this means all pure software patents in the US are (currently) gone- and many people who write software will tell you that this is the way it should have been since day 1 under a plain reading of the law.
If you dont like it, sue the USPTO.

The comment is nuanced in that if the program happens to interface with a piece of hardware that does $something_inventive_nonobvious_and_patentable, it looks like program+hardware may still be eligible.

From comments above, wording claims as program + ( hardware or program ) may be ok, but how will you enforce them against those who implement as program + program – won’t they just say that is not patentable.

I don’t particularly like patents on software, but do recognise that the time will come when Hardware+Software that has a valid (valuable) patent will be implemented as Software+Software and it may well be that there is nothing the patent holder can do – which is also unfair.

jesseMay 11, 2013 7:33 am

Actually, my quote was and is correct.

Both “methods” are nothing but abstract mathematics. A calculator (just like any other computer) can only add/subtract/multiply/divide. The only additional things that a computer does over the calulator is a way to identify whether a value is zero, and to follow a sequence of instructions. And both are also mathematical processes.

The only thing patentable is the device that performs the computation. Not what is computed.

Your example of robots is also incorrect. You patent the robot, not what the robot does.

The assembly line goes all the way back to the stone age. First create a collection of stone arrowheads. Now transport that collection to where you have (or had an assistant collect) the shafts. Also local are the collection of feathers… collected by possibly another assistant. Now assemble the arrow head, the shaft, and the feathering – to produce the arrow.

Nothing new in concept of an assembly line. What MAY be new is the specific assembly line.

NWPAMay 11, 2013 8:11 am

@Jesse:

“The only additional things that a computer does over the calulator is a way to identify whether a value is zero, and to follow a sequence of instructions. And both are also mathematical processes.”

So, let’s just test how well you understand information processing methods. So, these calculators with the added features you state are Turing equivalents, which mean they can compute ANY computable function including all that goes on in your head.

Methods of processing information are not “math” in the sense of math that you appear to understand it.

Software and hardware are interchangeable. Methods are patentable. Read Deener.

NWPAMay 11, 2013 8:35 am

@Jesse

Lourie: “At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility.”

Jess: “Finally, at least one judge gets it right.”

“perform mental steps faster than a human” is bad? So, a machine that processes information in a different way and better than humans is not an invention? A bulldozer is just a machine that moves dirt faster than a human can with their hands. The methods on the computers are different than how people perform the methods and require invention to create.

Actually, Lourie has revealed to us that his education is woefully lacking and dated. He should retire.

jesseMay 11, 2013 8:55 am

@NWPA

You misunderstand.

“perform mental steps faster than a human” is not bad. Patent the device that does so.

But you don’t patent mental steps.

A bulldozer is also such a device. Patent that device.

But you don’t patent shoveling dirt.

jesseMay 11, 2013 9:02 am

@NWPA

“Methods of processing information are not “math” in the sense of math that you appear to understand it.”

If that were true, then you wouldn’t need a computer to process software….

Software is mathematics – not patentable, hardware to process software is hardware, and patentable.

Without the processor hardware, software is just a written form of mathematics.

NWPAMay 11, 2013 9:19 am

@Jesse:

Hardware and software are interchangable. Once you have a basic Turing equivalent machine than all else is interchangable. I can build a circuit that will perform the same method as any software. If you want to argue about this, then please address that point. In fact, moving something between a circuit and software or microcode is just a design choice based on many factors.

Jesse: What is math? And, in patent law methods are eligible for patentability. These methods on computers are methods of information processing. They work on represented information. They require time, energy, and space to perform the method.

I can see that you don’t have the background to have a real discussion about math. But, try to understand that methods that process information are not math in the sense you would like. Math is often used, but then it is in every field. These methods of processing information are just that. Methods to process information. That cannot be reduced (actually it can, but then everything can be reduced to a symbol system.)

You say patent the device. I can take ANY software and perform the same functions with a circuit. The computers that we use now are based on an architecture that reduced the circuits to instructions to a CPU. It is inefficient. That is why we have special purpose chips. Implementing the methods directly is more efficient.

I can the feeling I am not going to convince you unless you make a serious effort at educating yourself. Try by reading the SCOTUS Deener. Go to google scolar and type in supreme and deener and tick the radio button for include judicial opinions.

You see what happened with this “math” business is that the SCOTUS was equating it with natural laws. Information processing methods are not natural laws.

NWPAMay 11, 2013 9:23 am

And, frankly, Jesse if you take the time to education yourself, you are going to find that your views are from about 1920. After that serious progress has been made understanding information processing and computation.

Any statement like Louries that has included “think” like a human illustrates a vast gulf of ignorance that is not going to filled without serious remedial education.

jesseMay 11, 2013 9:31 am

@Mark Nowotarski

“What physically happens inside a computer is very different than what physically happens inside a human brain. Computers do not do “calculations”. We merely interpret what they do as calculations. If you want to see where the analogy breaks down, looking into computational fluid dynamics and the challenges of rounding errors.”

No – computer do pretty much the same computations, they just don’t do it in the same way. Boolean algebra works quite well for hardware. Not quite so well with humans.

And referring to “rounding errors” is a subject that has always been a challenge – even if a person is working it out by hand. Just having to use transcendental numbers causes rounding errors for humans too, and with catastrophic failures such as the Tacoma Narrows Bridge Collapse (which was due to unanticipated movement modes not computed, at least partly due to the complexity).

NWPAMay 11, 2013 9:40 am

@Jesse:

OK. You are ignoring facts at this point. Software and hardware are interchangable. That is a fact. I can build a chip that implements Unix for example with no software. That is a fact.

You cannot reduce a method to your type of math. That is a fact.

Methods are eligible for patentability. That is a fact.

I am not going to interact with you further unless you directly address what I just asserted as facts.

jesseMay 11, 2013 9:41 am

@NWPA
“I can take ANY software and perform the same functions with a circuit.”

Yes you can… and you can then patent that circuit.

But you can’t patent the mathematics.

The difference is that you have to very carefully design that circuit, using many things not included in the software. Things like “voltage levels”, and “current flow”, “capacitance leakage”, “wire resistance”, “inductive currents”,… none of which occur in software.

And as you say, “Information processing methods are not natural laws” – no they aren’t. They are mathematics and that was deemed a non-patentable subject as being abstract.

jesseMay 11, 2013 9:45 am

“OK. You are ignoring facts at this point. Software and hardware are interchangable. That is a fact. I can build a chip that implements Unix for example with no software. That is a fact.”

Yes it is. and you can patent that circuit (see above).

“You cannot reduce a method to your type of math. That is a fact.”

What method are you referring to. All methods a computer can carry out are defined in mathematics.

“Methods are eligible for patentability. That is a fact.”

Only if they are not a field that is prohibited, or abstract thought. And mathematics is such a field.

NWPAMay 11, 2013 9:58 am

“What method are you referring to. All methods a computer can carry out are defined in mathematics.”

What does defined in mathematics mean? I can define a molecule in mathematics.

A method cannot be reduced to your type of mathematics. The methods that you wish to reduce are capable of computing any computable function and cannot be reduced to the type of mathematics the SCOTUS is referring to. That is a fact.

“The difference is that you have to very carefully design that circuit, using many things not included in the software. Things like “voltage levels”, and “current flow”, “capacitance leakage”, “wire resistance”, “inductive currents”,… none of which occur in software.”

Sheer nonsense. The process of making a circuit from software can be a mechanical process without human interaction. Circuit for loops ect are well known. And, the form of an invention should not matter. You are saying that a computer sitting there detecting lumps in breasts is patentable if implemented as a circuit but not if software is performing the exact same function. That would make it worthless to patent the hardware other than minor speed increases that could be obtained, which is not the invention. The invention is the detection of lumps.

Jesse: please your line of thought is medieval thinking. These are machines. We are building machines that process information. These machines take power, time, and space. This is real like it or not. These machines will soon be smarter than us.

Gene QuinnMay 11, 2013 10:33 am

Andrew-

When I say it is unfair to change the law that people relied upon you say:

“All new judgements/precedents and all new laws are ‘unfair’ to someone.”

It would appear that you have no familiarity with the law specifically or even generally. Let me explain some objectively true fundamentals about the law. When a statute is passed, such as the AIA, applications filed under the old statute are governed under the old statute, not the new statute. When Courts, including the Supreme Court, issue a ruling changing property rights dealing with real estate the changes are applied prospectively, not retroactively.

If you want to pretend that the way the law of software has developed is the way law typically develops go ahead. You are only fooling yourself, not those of use who know what we are talking about.

You also say: “this means all pure software patents in the US are (currently) gone…”

No. Wrong again. The Federal Circuit tied, which means there is no precedent from this case. Had the district court found the claims to be patent eligible that ruling would have stood as well. So your statement about software is simply incorrect.

The rule for software at the moment is this: It depends on what 3 judge panel you draw from the Federal Circuit whether your claims are valid. No certainty. Some entities will have patents with valid claims and others who are similarly situated with have patents with no valid claims depending upon the judges involved in hearing the case.

-Gene

Gene QuinnMay 11, 2013 10:39 am

NWPA-

I don’t think it is helpful to perpetuate the myth that all software can be done by a paper and pencil. That is simply false. I don’t care what supposedly great mathematician or computer scientists came up with that nonsense.

As pointed out earlier, it is impossible to do by pencil and paper the computations for a GPS system for a ballistic missile. As we all should be willing to admit, there are many thousands of computations that need to be made repeatedly in a very short period of time to guide something like a missile, to take evasive measures as needed and to get back on track.

You simply cannot do that with pencil and paper. It would fail every single time.

-Gene

EGMay 11, 2013 11:17 am

“At least since the 1970?s humans have not been physically able to fly fighter jets. The computers fly the jets. If the computers crash, the plane crashes.”

Mark,

My F-117 stealth fighter/B-2 bomber example. These aircraft were inherently unstable platforms, like the old “flying wing” (you can see one in the 1950’s version of War of the Worlds). Without the computer software to help the pilot control these aircraft, they’d be even more dangerous to fly.

EGMay 11, 2013 11:19 am

To all:

Sorry, there are actually 7 opinions; I forgot to count the short but very important per curiam opinion at the beginning of this 135-page mess.

MarkMay 11, 2013 11:59 am

All computers have a “data storage unit” (normally a disk drive) and most have a network connector (ethernet/wireless/USB) of some kind, and on the other end of that connector is some other computer “first party device”. The “inventions” are simply describing a process which can be done on a general purpose computer that you can pull out of a shop.

It is for this reason that patents like this one should be sent to the trash can – they’re describing an algorithm only dressed up with the components of a standard computer.

JodiMay 11, 2013 1:20 pm

Sure, a computer is a tool used by humans to speed up calculations. Likewise, a pen and paper are also human tools. So logically, reducing calculations down to pen and paper is not enough but rather you need to reduce it down to PURELY mental calculations.

Let’s consider just the isolated example of encryption. Encryption generally involves repeated calculations, such that each calculation is based on something previous. One tiny mistake, and the entire encrypted result is broken such that the equivalent decryption returns complete gibberish. So the amount of calculations involved in encrypting a simple document would literally take a human (using purely mental calculations) years if not a lifetime. But consider the fact that humans make mistakes – maybe not the 1st day, or the 1st month, but at some point EVERY SINGLE human performing the same menial calculation over-and-over, year-after-year surely would.

In other words, one could likely show that encrypting a simple document using purely mental calculations is not possible for any human in existence (because of a single mistake a humans would make after some.

Gene QuinnMay 11, 2013 2:42 pm

Mark-

So what about patents on robotic innovations? All robots are made up of pieces and parts that are well known.

Following your logic leads to nothing being patentable. Perhaps that is what you prefer, but it won’t be what the Supreme Court says. Patents have been issued on methods as well as devices since 1790.

As for your saying this could be done an a general purpose computer, that is simply false and you know it or should know it. The computer is a dumb terminal. A “general purpose computer” does nothing without software to direct the action. So cling to the nonsensical distinction between general purpose computer and special purpose computer if you want. It only shows you really don’t understand the technology and ignore the fact that software, not hardware, is what is unique.

-Gene

JodiMay 11, 2013 2:52 pm

Jesse:

Set aside for a moment your inability to grasp that hardware and software both boil down to logic (and e.g. combination of logic operators), but you seem utterly fixated on:

>>> “All methods a computer can carry out are defined in mathematics.”

So what? that applies to all science and engineering fields. ….And software is different how?

JodiMay 11, 2013 4:37 pm

Mark May:

Broad statements such as:

>>> “It is for this reason that patents like this one should be sent to the trash can”

come across as awfully naive regarding innovation. Please do enlighten us and explain what innovation(s) or technological advancements you have made (such as in data storage or networking you mention) that qualify you to discuss patents.

Gene QuinnMay 11, 2013 4:49 pm

Jesse-

Your comments about computer methods and mathematics sound dangerously close to saying that computer software is simply mathematics and you cannot patent mathematics.

I know that computer scientists like to pretend that software is math, but no matter how many times that is said it will NEVER be correct. Software is not math, period. See:

For those who are still believe software is math despite my years of proving otherwise, please provide a solution for the IPWatchdog.com homepage. If software is math a simple series of lines of code, like the PHP and HTML contained in the IPWatchdog.com homepage can either be reduced or solved. Of course, neither is possible and I have yet to have someone who is so sure that software is math ever take up the challenge to solve the code for our homepage. Curious where all the believers go when put to the challenge?

-Gene

jesseMay 11, 2013 5:17 pm

@Gene
“please provide a solution for the IPWatchdog.com homepage”

Every browser presents that solution where that browser meets the language interpretation assigned to that series of numbers that represent your homepage.

All the computations on a computer can be done with paper and pencil. Period. I agree with you, though, that as a practical matter applications cannot be done without a computer. In fact, even if the entire human population took up paper and pencil they could not keep up with the fastest supercomputer. So, practical application using the computer cannot be done without the computer. (There was Fed. Cir. case directly on point to this where they held it didn’t matter. It gambling with Newman in the dissent before State Street.)

I bring up the paper and pencil to illustrate that the arguments that relatively simple methods that could be carried out on a paper and pencil are no less deserving than the methods that could not practically be carried out with a paper and pencil. But, I think you have a point that judges are trying to skip by the point that without a computer these applications simply could not be done.

MikeMay 11, 2013 5:57 pm

@Gene:
“I don’t think it is helpful to perpetuate the myth that all software can be done by a paper and pencil. That is simply false. I don’t care what supposedly great mathematician or computer scientists came up with that nonsense.”
It has been proven mathematically to be true. There is no appeals court in mathematics. It doesn’t matter how many lawyers wish it weren’t true, or pretend that it isn’t.

Alan Turing is not “supposedly great”. Alan Turing is the man that the Turing award is named after; it’s the highest award in Computer Science. Calling something “nonsense” because you don’t understand it won’t make it go away.

“As pointed out earlier, it is impossible to do by pencil and paper the computations for a GPS system for a ballistic missile.”
No, it is possible to do the computations by hand. What isn’t possible is to do the computations by hand fast enough for the results of the computations to be worthwhile. What you’re describing here is not a piece of software, it’s a physical system that includes a computer running a piece of software as one component.

Ron HiltonMay 11, 2013 6:12 pm

Arguing what theoretically can or cannot be done by a computer will never resolve the question of software patent eligibility. If the claims limit it to a software and/or hardware implementation then that’s what it is. If someone can figure out how to do it without a computer then by definition it doesn’t infringe. As for non-computer business methods, I believe that they fit the statutory definition of a “process” and should be patent-eligible as well. If it involves human activity then it’s not an abstract idea. Even a “mental method” could be patent eligible if it has utility, although it would be hard to enforce given the current state of neurological science.

andrewMay 11, 2013 6:19 pm

Andrew-

When I say it is unfair to change the law that people relied upon you say:

“All new judgements/precedents and all new laws are ‘unfair’ to someone.”

It would appear that you have no familiarity with the law specifically or even generally. Let me explain some objectively true fundamentals about the law. When a statute is passed, such as the AIA, applications filed under the old statute are governed under the old statute, not the new statute. When Courts, including the Supreme Court, issue a ruling changing property rights dealing with real estate the changes are applied prospectively, not retroactively.

Two things you might be interested in

– I think those who were alive when slavery was abolished in the USA around 1865 might disagree.
– Ex-post facto laws are (generally speaking) allowed when the law affected is a civil law (Calder v. Bull)

Wayne BoreanMay 11, 2013 6:56 pm

Gene,

I think you misunderstood what I was trying to say. Let me try again.

The fact that the job can be done without a computer is completely irrelevant.

Why? Let’s take Mortgage Amortization tables as an example. They’ve existed since the time of Charles Dickens. Scrooge and Marley would recognize today’s tables, if not the way they are presented. Basically the only difference is we feed them through a computer, and now we have weekly and bi-weekly payments in addition to monthly.

Computers enabled further granularity, but the same could have been done by clerks.

Cars can be put together without the use of an assembly line, so does that mean that the processes used in an assembly line are not patentable?

Since you don’t name the specific processes, I don’t know, but I suspect not. While there have been refinements to the assembly line concept, there haven’t been any substantive changes since Henry Ford’s time. The supporting technology has changed, the line itself has not.

The supporting technology itself is probably patentable. I say probably, because of course it has to meet the statutory requirements.

Under this logic then robots aren’t patentable either because humans could do what robots do. Robots only do it faster and cheaper.

That depends. I know of robots that can operate in toxic atmospheres. Humans can’t. Then there’s the components. Humans have no direct equivalent to a hydraulic cylinder, though of course hydraulic cylinders are antique technology. Again, it depends. You have to look at each device, each component. It is impossible to make sweeping statements in most cases.

Power generators aren’t patentable either because, as the ESPN commercial teaches, you can just hook up Lance Armstrong to a bicycle and generate power. So if a human can do it no matter how slow then the resulting innovation can’t be patentable.

Can we patent a power generator that takes steroids and lies about it? Interesting question.

We can go on and on. The logic used by the 5 judges is irrational, shows a complete lack of understanding of innovation and patent laws, and isn’t tethered to reality. Based on this logic millions of patents would be invalid because the processes or machines merely do what a human could do.

Gene, you haven’t proved that this would necessarily be a bad thing.

Mind you it might be a bad thing. A lot of people would have wasted a lot of money for nothing.

The bigger issue from my point of view is that I keep seeing patents that fail two major tests:

1) Obvious to those skilled in the art
2) Pre-existing Prior art

I’ve never, ever, read a single software or business method patent that can pass either or both of those tests. I’ve seen very few hardware patents that pass either or both of those tests.

Admittedly I’m a cynical sort. I look for the bad in everything before I look for the good. Scary thing is I more often than not find the bad. No wonder I’m so cynical. No wonder I write Horror stories.

Problem is I keep on finding the bad, so whenever someone tells me how wonderful increased Patent or Copyright protection is, I start wondering who has got the fix in. A couple of years ago I caught the Canadian Recording Industry Association lying their asses off. Go to Torrentreak dot com and search for my name, I can’t remember if the article actually mentions the CRIA, but they were behind the whole thing, and me being a paranoid sort, I’ve got the screen caps to prove it (they tried to wipe the net – sorry boys, doesn’t work).

Currently it as been estimated that Microsoft is making more money from Android than from Windows 8 Mobile. Did Microsoft do any work on Android? No. Did the programmers at Google or the Linux Kernel project read Microsoft’s patents? No. So why should HTC, Casio, Samsung, etc. pay Microsoft for those patents?

Essentially it is a question of fairness, and the current system does not seem to deliver it.

Wayne
PS: Sold several more short stories. Things are going quite well

jesseMay 11, 2013 8:29 pm

@NWPA
“What does defined in mathematics mean? I can define a molecule in mathematics.”

No you can’t – you CAN describe some/most of the characteristics of a molecule in mathematics. But that is a description, and still not a molecule. You might even be able to copyright that description, as long as someone else hasn’t already done so.

“A method cannot be reduced to your type of mathematics. The methods that you wish to reduce are capable of computing any computable function and cannot be reduced to the type of mathematics the SCOTUS is referring to. That is a fact.”

If a computer can compute, then it is using what is called in mathematics, a universal algorithm. That universal algorithm is mathematics, and any use of that algorithm is still mathematics. Saying something isn’t mathematics when it most certainly is, is called denial.

The computer was defined by mathematicians, it was implemented by physicists and mathematicians to solve mathematic problems. That is all it can do. All research into computation theory, automata theory say the same thing. A computer can do nothing but mathematics.

“The difference is that you have to very carefully design that circuit, using many things not included in the software. Things like “voltage levels”, and “current flow”, “capacitance leakage”, “wire resistance”, “inductive currents”,… none of which occur in software.”

“Sheer nonsense. The process of making a circuit from software can be a mechanical process without human interaction. Circuit for loops ect are well known. And, the form of an invention should not matter. You are saying that a computer sitting there detecting lumps in breasts is patentable if implemented as a circuit but not if software is performing the exact same function. That would make it worthless to patent the hardware other than minor speed increases that could be obtained, which is not the invention. The invention is the detection of lumps.”

Yes, the automatic transformation of software into a physical circuit CAN be done. But it still has to take into account things that DON’T exist in the software. And yes, it can be patented – in fact, that is how processors are built. But even the automatic transformation doesn’t get quite everything right, so people still have to go thorough it and check, and in some cases, change what is to be implemented in that device. One of the specific problems that automatic transformations get wrong is leakage current… That is why the chips have test points to help identify where failures occur in the prototype chip, then people can analyze the error/modify the transformation, or just change the circuit design.

The circuit is a specific assembly of physical parts. The software is not.

Whether that makes it worthless to patent is up to the designers.

And “The invention is the detection of lumps” is also not patentable – my doctor can do that without a computer. So are you saying that because you have a patent on detecting lumps my doctor is violating your patent? Even though he has been doing it for 30 years?

“Jesse: please your line of thought is medieval thinking. These are machines. We are building machines that process information. These machines take power, time, and space.”

So does a person thinking. And that takes power, time, and space.

Processors are machines, patent the processor. Software is nothing but a list of instructions for a processor to follow. Just like a recipe, and like a recipe, not patentable. You can copyright it though.

“This is real like it or not. These machines will soon be smarter than us.”

So what? Obviously they would be performing abstract mental steps – and thus the steps would not be patentable any more than the steps you use when thinking.

Though I don’t believe digitial computers will actually surpass a wetware for a lot of things. They CAN surpass us in basic computation. But even IBMs Watson isn’t as smart as a three year old for what that three year old can do – image processing, real time motion control (though unsteady), identification of physical objects, classification of physical objects, sensor management, energy management, chemical analysis, waste product management… With only a three year 9 month development cycle.

Can it happen? I suspect yes. And it will announce itself when it demands freedom.

AnonMay 11, 2013 9:47 pm

“You might even be able to copyright that description, as long as someone else hasn’t already done so”

I shudder at the lack of knowledge being displayed on such an important topic.

JodiMay 11, 2013 10:43 pm

Wayne Borean:

you said:

> I keep seeing patents that fail two major tests:
>
> 1) Obvious to those skilled in the art
> 2) Pre-existing Prior art
>
> I’ve never, ever, read a single software or business method patent that can pass either or both of those tests. I’ve seen very few hardware patents that pass either or both of those tests.

This is the classic trap. Everything is obvious in hindsight. Google ranking based on backlinks that make up PageRank is completely obvious in hindsight yet fundamentally altered search engines and provided the majority of their revenues thereafter. Furthermore, Google patented this (well technically Stanford) and thereby prevented anyone else from creating search engine based on this. True, Google also built a decent lead with other technical measures (e.g. their massive infrastructure) – but the point is that Google’s patent is roughly as big of a hurdle.

Lastly, only someone who has never truly innovated or created something that fundamentally changed things ever makes broad statements like the ones you’re making. Leave the arguing about how best to protect innovating to those with some experience in it.

Wayne BoreanMay 11, 2013 10:58 pm

Lastly, only someone who has never truly innovated or created something that fundamentally changed things ever makes broad statements like the ones you’re making. Leave the arguing about how best to protect innovating to those with some experience in it.

Jodi,

I used to be part of a team that designed Catalytic Converters. I also sold them to manufacturers. My customers were large names in the off-road market. If you go to the California Air Resources Board website and search for “Wayne Borean” you’ll find that my name still comes up on a few documents, even though I’ve been off work for the last several years because my body gave out on me. I’m intimately familiar with both Spark Ignition and Compression Ignition engines, their ancillary systems, and the machines they power.

I also am a computer programmer of some skill. I’ve helped design production machinery. I’ve helped design several non-road machines, some of which might still be in production. I don’t know, I’ve lost touch since I’ve been off work.

Saying I don’t know innovation is like saying Gene doesn’t know law. I have solid reasons for my opinions. You may not like them, you might disagree with them, but I do have them.

Gene and I often disagree on patent issues. That’s fine. We talk, and both of us learn.

Wayne

Gene QuinnMay 12, 2013 12:26 am

Mike-

You are a funny guy. Reality is not your strong suit I see.

Math is not software and software is not math. No matter how many lies you try and tell, blanket statements “it has been conclusively proven.” Seriously? Are naked conclusions all you can mount? No evidence? We are just supposed to take your supreme word for it?

No thanks. If you can’t do better than naked, unfounded, erroneous conclusions go elsewhere with your comments.

Also, I’ll just point out that you didn’t offer a solution for the IPWatchdog.com homepage. LOL. So easy to prove, yet you can’t solve or reduce a simple piece of HTML/PHP. LOL. You and folks like you are so predictable. You exalt folks you don’t understand and hide behind words that they say because a bunch of people who similarly don’t understand think he or she is brilliant.

-Gene

Ron HiltonMay 12, 2013 12:30 am

Wayne, you’re in good company. Even the Supreme Court doesn’t understand the difference between subject matter eligibility, novelty, and non-obviousness. They try to fix a problem with one by making a ruling on the other. The Federal Circuit are supposed to be the patent experts, but apparently some of them don’t understand either. I recently wrote a patent application for Cummins on a catalytic converter system. Guess what? The novelty was all in the software. Thanks to the muddled reasoning of people like you and some of the FC judges, it may now be invalid.

Gene QuinnMay 12, 2013 12:36 am

Jesse-

Really, is “browsers solve your webpage” the best that you can do? Even if that were true, which it obviously is not, a browser is not a person is it? Does a browser do this with pencil and paper? LOL. You fail to understand the issues so much your erroneous, idiotic retort actually helps me, not you.

Now for the lesson in computers you seem to so desperately need. Browsers do not solve a webpage. They resolve the code and display according to the instructions provided. It would seem that YOU are the one who is unfamiliar with how software, computers and the Internet works. Very basic programming 101 should have taught you about how coding works to call in components and display them as desired. To call this “solving” shows a complete and utter lack of understanding of the processes involved. It also shows an abysmal understanding of mathematics and the meaning of what it is to “solve.” Your education system has severely let you down.

Let me explain this as simply as I can so hopefully you can understand. First, software is a set of instructions. Those instructions tell the computer how to operate. They are a method. Methods have been patentable since 1790. It really is that simple.

Yes, I know all about the erroneous statements about software being math on Groklaw, and I’ve answered them all here over and over again. I am correct, you and they are wrong.

The problem is that people like you have not even a first level understanding of the issues. All you can do is parrot the words of someone who you think is superior to you, who has been given awards and recognition by others who are superior to you. Debating people like you is impossible because you just run to links and phantom authority and yell… “SEE… SEE… SEE… this brilliant person thinks you are wrong.”

I’m happy to debate anyone on this topic at any time as long as they are an authority and won’t find it necessary to parrot arguments and point to others without explaining their logic. When the logic is laid out I can and will pick it apart piece by piece. Hard to do with folks like you who don’t provide any logic or coherent thought.

-Gene

Gene QuinnMay 12, 2013 12:49 am

Wayne-

It is hard to argue with what you say above. You answer honestly and point out that you can’t really tell because I haven’t set the parameters of the invention. THAT IS THE PROBLEM. Software patents are bad when they don’t teach or describe anything useful so that the person of skill in the art can learn from the disclosure and perform the invention. That is not a patent eligibility issue though. That is a disclosure issue under 112. The problem is Courts want to make it about 101 and patent eligibility, so even if someone does describe the particulars with excruciating detail and it is new and it is nonobvious they still can’t get a patent. That is the evil and mischief done by Judges being lazy and wanting 101 to do the heavy lifting that sections 102, 103 and 112 are supposed to do to support the 101 inquiry.

As for the problems with software patents you mention relating to novelty and obviousness, those are issues that deserve to be analyzed. They are under 102 and 103 respectively, not 101. It is also worth noting that the patents where 102, 103 and 112 are an issue are ones that were drafted many, many years ago and were patented many, many years ago.

The Patent Office can and does make mistakes. They have a limited time to examine applications. I know you are not saying this, but it is false for anyone to say or even suggest that software patents are being handed out easily over the last 6 or 7 years. Quite to the contrary. There are plenty of solid innovations that the USPTO will not patent because they are being over restrictive.

Finally, I know you know the issues well enough, but allow me to make a general point for others.

Jodi’s admonition about hindsight is an important one. In many of the cases where the general public believes the patents are clearly obvious they are 100% correct if they are asking whether it is obvious when the patent is litigated or even issues. There are plenty of patents in this space that remain pending for 8, 10 or even 12 years or longer before being issued. The question of obviousness is this: was the invention obvious at the time of invention. Invention can and frequently does happen 1, 2 or more years before the filing of a patent application.

An example, let’s say a patent remained pending for 10 years before issued (not unusual with software). It was 8 years before it was litigated, and the core innovation was made 2 years before filing. The question then is whether the innovation was obvious 20 years ago, not when the NY Times runs an article completely missing the facts and botching reality. So it is nearly universally incorrect to say that the high profile software patents represent obvious innovations. Joe Blow the average computer programmer will never get this and will wonder why the best and brightest attorneys and business people didn’t just explain it properly rather than pay a $1 billion judgment after paying attorneys $250 million to litigate. The naivety is astonishing and so many don’t even care, which is just sad.

Cheers.

-Gene

Gene QuinnMay 12, 2013 12:56 am

All…

I think there are some on this thread who don’t get it, won’t get it and will say whatever they want without support unless it is to blindly cite Groklaw without understanding the issues.

For what it is worth…

Wayne is someone who the patent believers among us will likely disagree with on many issues, but he is someone we can honestly engage. Over the years he and I have had discussions both in comments, via e-mail and Facebook. Some of what he says may read like the lemmings we encounter, but he does thoughtfully approach the issues.

As for those who blindly say software is math and cite some professor they don’t know and will never understand… they are a different story.

Cheers.

-Gene

NWPAMay 12, 2013 3:10 am

@Wayne: I used to work in the innovation division of a major corporation. We did internal start-ups. Some people just don’t get the hindsight problem. I worked on a problem for about 1 year along with about 1000 other people around the world. Someone figured it out. Not me. When I saw the solution I thought it was so simple that I could not believe that I didn’t think of it. I simply couldn’t believe it. Now, people all think it is trivial. A joke. Not something deserving of a patent. Laughable. We dope 1000 who couldn’t figure out this trivial problem. That is hindsight. If you don’t get it, then dig a bit deeper in your own mind and you will get it. It requires being honest with yourself and remembering how you perceived a problem before it was solved. Or, you may just look at the solution of some problems and ask why they weren’t solved many years before.

>And “The invention is the detection of lumps” is also not patentable – my doctor can do that without a >computer. So are you saying that because you have a patent on detecting lumps my doctor is violating your >patent? Even though he has been doing it for 30 years?

Jesse: a bulldozer digs a ditch. A machine. It is patentable and a machine that is doing something that humans have been doing for 1000’s of years. The computer is a machine that is performing information processing tasks. The whole point is that we are figuring out how to do things that people can do. A machine.

NWPAMay 12, 2013 3:15 am

And, Jesse, answer this question: is a machine that detect lumps in breasts a natural law? Was it discovered or invented? If invented, then it is not math in the sense of the legal system.

Paul JohnsonMay 12, 2013 4:21 am

I think the concept that the courts are fumbling their way towards is that the arrangement and manipulation of matter and energy is patentable subject matter, but the arrangement and manipulation of information is not.

In the Diehr case the court distinguished between the measurement of temperature, which is a manipulation of energy, and the processing of the temperature by an algorithm, which is a manipulation of information. The manipulation of information had to be treated as if it was “well known”, but the patent was held to be statutory subject matter because the manipulation of energy was sufficiently novel in its own right.

The “pencil and paper” test, whereby a process is held not patent-eligible if it can be carried out by a sufficiently fast person with a pencil and paper, is a good approximation to this. This person can only manipulate information; marks on the paper can have no impact on matter and energy except through some other means that are aimed at manipulating or arranging matter or energy. Those means may be patentable.

This clears up the problem, stated several times in this thread, about what it means to be “mathematical”. Yes, I can write down a “mathematical” description of a chair and process that description in many ways. And in fact a CAD program used to design the chair is doing exactly that. But this only applies to a description of the chair. The actual chair is still an arrangement of matter not information, and as such is patent-eligible. Thus a patent on the chair grants a monopoly on the manufacture of such chairs, but not on information about the chair such as a CAD file or digitised patent.

jesseMay 12, 2013 4:24 am

@NWPA

“is a machine that detect lumps in breasts a natural law?”

Key word – machine. Key phrase “detect lumps in breasts”, The anser depends on the implementation of the machine. What is the machine?

So lets break the machine down –

Q: What does the machine examine?
A: pictures of a breast.

Q: What is a picture of a breast?
A1: a sequence of numbers generated by breaking up the image into small pieces and assigning a number to each piece.

A1Q: What is the sequence of numbers?
A1A: An abstract description of the original image.

A2: a time varying voltage/current level corresponding to the optic levels of the image. (think fax scan as an over simplification; or an eye examining the image for a more complex, and closer to reality example)

Note: is the voltage/current level an abstraction? no – they are very real.

Q: How does the “machine” carry out its function?

A1: By following the universal mathematical algorithm known as the instruction cycle, it applies a sequence of abstract mathematical operations to an abstract series of numbers to generate a new series of abstract numbers (which is then converted back into an image).
CONCLUSION A1:Therefore the sequence of mathematical operations is mathematics, an abstraction not patentable.

A2: By taking the voltage/current flow into a specific series of signal amplifiers, dividers, and comparators to generate a new series of voltage levels and currents used to display a new image. CONCLUSION A2:Therefore it is a physical device invented to handle the transformation of one image into a new image.

Q: When is the lump detected?
A: When a trained viewer looks at the new image. (this applies to both cases).

I’m sure the wording could be improved. I’m not sure the indentation levels will be maintained. I have tried to include both sides of the “device”, depending on how it is implemented.

Now HOW the universal instruction cycle is implemented is a machine, and that machine is patentable.

Can you combine a device implementing the universal instruction cycle with a device for converting an image into a series of numbers, and a device for converting a series of numbers back into an image? Sure. But usually each part is already covered by a patent, so it would be an aggregate patent, but only covering the physical devices. The software that may be/is contained within the device is not a patentable item – it is a written abstraction, which is already covered by copyright.

jesseMay 12, 2013 4:39 am

@NWPA

“The whole point is that we are figuring out how to do things that people can do. A machine.”

The difference is that you are trying to patent what people think.

You can patent the machine that implements the instruction cycle.

But you should not be able to patent abstract sequences of numbers as that is also a patent on what you are allowed to think.

jesseMay 12, 2013 4:44 am

Every mathematician I have met and all of those historically in the field, all agree that mathematics is abstract thought. A written language used to communicate that abstract thought.

And abstract thought and language is not supposed to be a subject of patents.

Paul JohnsonMay 12, 2013 5:24 am

@jesse

Your example of the breast lump detector that can be implemented either as an abstract computer program or as a patentable machine is a good challenge to my suggestion of a dichotomy between information and matter/energy. It is clear that any algorithm can be translated into a “machine” of registers, comparators and the like, which can then be treated as an arrangement of matter and a processing of energy. However I think that it is still possible to distinguish between a specific implementation of physical circuit components and the algorithm that they implement. So in your example machine a certain value might be represented as a voltage, but I could devise a different machine with the same function where that value was represented as a current. From the point of view of information the two machines are equivalent, but they are different arrangements of matter. Under my proposal a patent could only cover the physical arrangement, so if you had a patent on your machine then I could still manufacture my machine. The only way that my machine could be said to infringe on yours is if your patent is read as covering all physical implementations of the underlying algorithm.

This would also make it impossible to patent a machine and then claim that a general purpose computer implementing the same algorithm is an infringement.

Paul JohnsonMay 12, 2013 5:29 am

@Gene

“Math is not software and software is not math.”

Gene, as this goes to the heart of our debate, can you please suggest a definition of mathematics that would enable us to determine the truth of this statement?

NWPAMay 12, 2013 5:30 am

@Paul and Jesse:

Represented information needs time, space, and energy to transform. Methods of transforming the represented information are not math. I don’t even know what that means to say that a method on a machine is math.

NWPAMay 12, 2013 5:34 am

>But you should not be able to patent abstract sequences of numbers as that is also a patent on what you are >allowed to think.

Read case from the 19th century, Deener. A method of processing wheat. It patents a process that you could perform by you body. No one cares because no one wants to perform that process and no one would enforce it. The process is meant to be performed by a machine—a machine.

The patent is for the machine to perform a method.

Golodh patent.May 12, 2013 6:02 am

I believe that the reason this ruling is ‘all over the place’ is that the subject matter, software patents, is so difficult. Unlike the creation of physical objects or chemical processes, software is by its nature very close to mathematics and abstract ideas and it’s easy to fudge the boundary between them.

As in: clothing an abstract idea or mathematical algorithm in enough technical verbiage to make it look like ‘a method and apparatus’ while at the same time keeping the language so abstract that *any* reasonable inplementation of the abstract idea must needs infringe the patent.

Of course this isn’t what patent law is for, but market pressures force us to test the absolute limits of (formal) patentability.

Then there is the persistent question of doubtful patents. The PTO does its best of course, but it’s swamped with cases. It therefore reviews patents in a narrow way: Is an application already in our database? If so: no patent. Is an application described in the open literature (journals, textbooks)? If so, no patent. Otherwise: patent granted; and if it’s ever challenged, we’ll let the courts decide. Maximum efficiency on part of the PTO. This practice isn’t too bad for patents on physical things, but it’s inadequate when it comes to software.

As the Supreme Court already noted, coming up with formal (i.e. mechanically applicable) criteria to discern bogus patents from valid ones is not doable. A modicum of understanding and common sense is called for, and this is where individual views will differ among judges. Hence the confusion. It’s unavoidable and it’s the price for trying to skirt so close to the edge (of abstract ideas and mathematical ideas) with patent law.

jesseMay 12, 2013 6:09 am

@NWPA

“Read case from the 19th century, Deener. A method of processing wheat. It patents a process that you could perform by you body. No one cares because no one wants to perform that process and no one would enforce it. The process is meant to be performed by a machine—a machine.

The patent is for the machine to perform a method.”

Note – that machine IS the implementation of a method, not a description of a method. The machine does not use abstract concepts to implement that method. It uses gears, levers, wheels, and ratchets.

And note also that it deals with the transformation. Transforming an image into an abstraction is a transformation, and that is patentable ( even the CCD cameras are patentable). But once it is transformed into the abstract, the “image” is in the area of abstract ideas – and thus anything done on abstract ideas (transforms from one to another) are not patentable. And conversion of an abstraction into reality (another viewable image) is also patentable, as every display/printer output device shows.

Paul JohnsonMay 12, 2013 6:35 am

@NPWA

“Represented information needs time, space, and energy to transform. Methods of transforming the represented information are not math. I don’t even know what that means to say that a method on a machine is math.”

The method of transforming represented information is mathematics. The method on a machine is an implementation. The question is, is a particular implementation patentable?

I can see that one could describe a specific machine hard-wired to execute an algorithm, and as an arrangement of matter which processes energy that machine should be patentable subject matter. However that patent should not then be read as covering any other machines that might execute the same algorithm using a different arrangement of parts. Similarly the implementation of the algorithm on a general purpose computer should not infringe because the arrangement of parts in the general purpose computer is not the same as in the patented machine.

It should not be sufficient to claim “the algorithm when implemented on a computer” because once you have the algorithm the implementation on a computer is an obvious step to anyone familiar with the art. Hence such a claim should fail for lack of inventive step.

jesseMay 12, 2013 7:19 am

@NWPA

(yeah I know this is in reverse order)

“Represented information needs time, space, and energy to transform. Methods of transforming the represented information are not math.”

Correct – the transformation of an image into an abstract is patentable. And the same is true of the transformation of an abstract into an image is also patentable.

Transformations from one abstract into another abstract has always been non-patentable.

“I don’t even know what that means to say that a method on a machine is math.”

If that machine implements the universal algorithm of mathematics, then that machine can only process abstract mathematical methods. The sequence of instructions used to record that mathematical method is written in memory.

If that record is on disk/flash, then it doesn’t require energy to remain, it is “written” there. When in the normal memory of a computer, the memory is written (and ust like writing into wet beach sand, it disappears if something isn’t done to maintain it). The processor reads the mathematical method from memory, one step at a time, and carries out the function specified using the mathematical operations implemented within the processor.

The processor can only carry out the mathematical operations defined by the manufacturer. For a useful processor, it must be Turing complete. Anything carried out “a method on a machine is math” as the only thing that specific processor can do is math.

A computer system is more than just a processor. It includes additional devices – memory, input, and output devices. All are patentable as they transform one physical signal into a different physical signal with an abstract information value.

Memory normally acts as just a scratchpad. In the old days, memory was “permanent” as its operation was based on magnetic domains. For a processor to read a memory location required the memory device to set the magnetic domain to a base value. The signal returned to the processor was the detected change in state of the domain – if it changed, then it was one value, if it did not, it was the other value. Of course, that meant that the memory device had to restore the changed magnetic domain. Most current memory devices use a capacitive charge. IF charged, it is one signal, if not charged it was the other. And the device must maintain the existing charge (otherwise you get a memory error:) It also accepts signals from the processor to write into storage. This memory device (of whatever kind) is patentable.
What is stored there is abstract.

Input and output devices are of various kinds. keyboards, disks/flash storage, displays. Each provides some type of physical transformation to/from the abstract. Keyboard/mice/touch devices convert physical operations (keypresses,movement) into signals that carry abstract information (numerical values). Output devices such as a display/printer transform abstract values into another physical reality (writing on paper, glowing images on a display…)

“Permanent” storage is a combination of input/output device (transforms abstract information into a different writing, usually magnetic, but it can also be written by blowing electrically restorable fuses (flash), or any other permanent media. That device is patentable because it is making a physical transformation of voltage/current levels into magnetic domains (or conducting/nonconducting fuses). Again, what is written is abstract information. The exact form of that information is stored is up to the designer of the device. The device is patentable, but the information on the device is not.

And yes, there are non Turing complete processors – the most obvious of these were used in early space probes sent to the moon. These had the universal algorithm implemented, but the operations defined were things like “turn on camera 1″, “turn off camera 1″, “wait for a control signal”, …

Normally they would be referred to as “sequencers”.

NWPAMay 12, 2013 8:56 am

>If that machine implements the universal algorithm of mathematics, then that machine can only process >abstract mathematical methods. The sequence of instructions used to record that mathematical method is >written in memory.

“can only process abstract mathematical methods” —- ONLY? That set happens to be all computable functions. That means everything that could ever be computed can be computed by you “ONLY process abstract mathematical methods.”

What is being executed is a transformation of information that requires space, time, and energy. The software has structure–the “only process abstract mathematical methods.”

So, your math is ONLY a representation of the method on the computer. That is it. It is not the method. It is not the actual structure on the computer. It is possible to represent the combination of molecules together in forming an alloy with math. That representation is only a representation of the molecules. The math representation you speak of is only a representation of the method.

Also, —- the SCOTUS is talking about algebra, you have gone into symbol systems that include all computable functions. The SCOTUS could spend the rest of their miserable lives trying to understand Church, Turning, and Godel, and never would be able to. They are talking about natural law with their maths.

And, again, yours is a representation of the method, the real method has structure on the computer, is taking energy, time, and space to execute. Your representation is no more the computer executing the method, then a representation of two molecules joining in a chemical reaction being the real chemical reaction.

NWPAMay 12, 2013 9:05 am

>>The method of transforming represented information is mathematics.

What is mathematics Paul? That is a ridiculous statement on the face of it. The math may be used to represent the method that is being executed on a computer, but it is not the method. The method is physically real. It has structure. It has space. It has laws of physics that are governing it. Including a law of information that says that information cannot be lost. It takes (by physical laws) energy, time, and space to transform the represented information. It is real. Your math is a representation of it. No different than me writing down equation describing a method of processing wheat. I could write down the method in Deener mathematically with equations. So what? It is a representation.

It is “abstract”? This is another magic word abstract. This word is really a 112 issue and the SCOTUS has just made this word up. Read Haliburton for a very good explanation of this word which essentially means we don’t want you patenting methods of performing things that use electronics. That was what was held in Haliburton. And the holding was based on public policy of the SCOTUS thinking that other machines could be made to do the same thing.

Anyway, you guys think it over. I am worried about paid bloggers on this board. Patentlyo seems to rife with them where there are bloggers that will hound your every word and are being paid to do so. They are anti software patent. And, no this isn’t my imagination. There was actually a job posting for paid bloggers for anti software on patentlyo.

Gene QuinnMay 12, 2013 9:38 am

Paul-

You need for me to define “mathematics” for you?

Seriously. The statement is self evident to anyone who if familiar with mathematics and software and who is intellectually honest. Software is a series of instructions that tell a machine how to operate. Mathematics is NOT a series of instructions that tells a machine how to operate. Mathematics is descriptive. Software is directive.

-Gene

Paul JohnsonMay 12, 2013 10:01 am

@Gene,

I need you to define mathematics because we must have different definitions. I believe that software is part of mathematics, whereas you do not. Either we have conflicting definitions or at least one of us is in error. I’m trying to narrow things down.

Wikipedia http://en.wikipedia.org/wiki/Definitions_of_mathematics notes that there is no one accepted definition of mathematics. However looking through the list of definitions in the section “Greater abstraction” (which moves away from a definition centred on numerical quantity), I cannot see how any of those definitions could exclude a computer program.

For instance, taking the formalist definition: “Mathematics is the manipulation of the meaningless symbols of a first-order language according to explicit, syntactical rules.” would clearly cover software, since software also manipulates meaningless symbols (values) using a first-order language (a programming language) according to explicit, syntactical rules. Of course the values have meaning outside the program, but inside the program they are just values.

Or taking Russel’s definition that all mathematics is symbolic logic. Actually I’d turn it around here; all programming is symbolic logic too. Admittedly this does not mean that programming is maths, but I don’t think that symbolic logic is any less “abstract” in the patent law sense, than mathematics.

Or again, “Mathematics is a broad-ranging field of study in which the properties and interactions of idealized objects are examined.”. A computer program describes the properties and interactions of idealized objects, and running the program provides an examination of their interaction in specific cases.

So would you care to propose your definition of mathematics and show how it excludes a computer program?

You say that “Mathematics is descriptive. Software is directive”. But nobody has ever claimed that all mathematics is software. The precise claim I make is that software is a subset of mathematics. Since descriptive statements can be made about the properties of a set of instructions, this does not exclude software from mathematics.

NWPAMay 12, 2013 10:14 am

Do you agree Paul that your math of programming includes all computable functions?

Do you agree Paul that your math is just a representation of what the computer is doing and not what the computer is doing?

Do you agree Paul that your description of symbols is the same thing the human brain does? For example, a graphics program that manipulates an image of a breast is working on represented information of the real world just like our brains do?

If so, then what you want to hold is that all information processing is not elgible for patentability. And, that all hardware beyond a simple Turing machine is not eligible for patentability.

NWPAMay 12, 2013 10:23 am

@Paul and Jesse:

Also, you should read Deener. The SCOTUS says in a footnote: it should not matter the type of grain that the method is doing, the method should cover all types of grain.

Paul JohnsonMay 12, 2013 10:34 am

@NWPA

“The method is physically real. It has structure. It has space. It has laws of physics that are governing it.”.

You obviously understand something different by the word “method” in this context than I do.

To me, a method of manipulating information, which is what I was talking about, is something like an algorithm. An example of such an algorithm would be the bubble sort (http://en.wikipedia.org/wiki/Bubble_sort). That is not something physically real.

If I were to create a bubble-sort machine then that would indeed be physically real, with structure, space and laws of physics. But that is a machine, not a method. I believe that you can patent a particular physical machine, but not the method that it implements.

BTW I am not a paid blogger.

AnonMay 12, 2013 10:41 am

A couple of other points to throw into the mix:

1) We are talking about a legal system as well as technology. Those understanding one but not the other should realize that straight up.

2) Intellectual Property protection has several different vehicles with some overlap. It is important to understand the general nature of what those vehicles afford protection to and for.

2a) Copyright protects expression. The protection is a long but shallow one.
2b) Patents protect utility (leaving design patents aside for the moment). The protection is shorter (and even so – notably far too long for many in the software area), but a much stronger one.

3) Software can be written elegantly and have expressive elements thus earning some copyright protection. However, some software can fail to earn this copyright protection (the lesson of non-coverage due to functionality deserves more than a blog post).

4) BY AND LARGE, software is written to do something. It’s very essence is utilitarian. “DOING” cannot be emphasized enough. Thus, BY AND LARGE, software naturally falls under the protection of patents. This is a critical point, and one often simply disregarded by those who desire software to not fall under patent protection.

5) Those preaching the “software = maths” line generally fail to understand the legal aspects of what is protectable. They fail to understand that “math in use” is patent eligible from the legal perspective. I see far too many people striving for a desired end result to exclude software without a fundamental understanding of how incongruent this is with the legal system of intellectual property protection. The analogies to communists or anarchists are apt along the lines that in both sides of the analogy, there are those wanting an ideal that does not exist and will not work in the real world. It is NOT to say that the ideal is “bad.” It is to say that it is bad to operate in ignorance.

Paul JohnsonMay 12, 2013 10:50 am

@NWPA

“If so, then what you want to hold is that all information processing is not elgible for patentability. And, that all hardware beyond a simple Turing machine is not eligible for patentability.”

I want to hold that all information processing methods (i.e. algorithms) are not eligible for patentability. I do not want to hold that hardware beyond a simple Turing machine is not eligible for patentability.

A specific machine that is designed to execute an algorithm is eligible, because it is an arrangement of matter. So for instance if Intel devises an improved circuit for binary multiplication then that is certainly patent eligible, even though the algorithm it implements is already well known. If they come up with a new algorithm and invent a machine to implement that then the machine is patent eligible, but the algorithm is not.

Why is this distinction between an algorithm and a machine that implements it difficult to see?

Paul JohnsonMay 12, 2013 11:00 am

@Anon

How do you reconcile your “math in use” principle with Benson and what was said in Diehr on the subject? Surely they show that while math can be used in a patentable process, the mathematics itself is not patentable and cannot be precluded by the patent on the rest of the process?

NWPAMay 12, 2013 11:01 am

@Paul
specific machine that is designed to execute an algorithm is eligible, because it is an arrangement of matter. So for instance if Intel devises an improved circuit for binary multiplication then that is certainly patent eligible, even though the algorithm it implements is already well known. If they come up with a new algorithm and invent a machine to implement that then the machine is patent eligible, but the algorithm is not.

1) Allapat held that a programmed computer is a specific machine.

2) Take a closer look at software. Software is nothing more than a clever trick to not have to build the hardware. That was the von Neumann architecture. It was clever.

3) Bubble sort running on a computer in software certainly has structure every bit as much as a special purpose computer build just for Bubble sort.

4) You “circuit for mulitiplication” example completely ignores modern reality of design. I work with some of the best in the world. Ph.D.’s in EE that design chips for the top companies in the world. I write patents all the time for architecture, circuits and software. In fact, I’d wager any amount that you are working on a chip from one of the companies I work for. You notion of design is from the 1940’s. EVERYONE knows that software/firmware/hardware are all interchangable. EVERYONE that is technical competent in this field. EVERYONE!!!!! The designers I speak with say, “well, I don’t know how we will implement that method. Maybe hardware, maybe firmware, maybe software. Maybe we will build a little processor overthere to do it. Maybe hardware the method. Not sure yet. Depends on the final layout.”

You view of the world is nonsensical. Antithetical to modern computer architecture.

And, I am sorry, you don’t understand it, but a method of bubble sort in software running on a computer is not the symbols in your textbook, and that method executing on a computer has as much structure (physicality if you will) as a special purpose circuit to execute bubble sort.

NWPAMay 12, 2013 11:05 am

And for the record: I am not a paid blogger. I have degrees in computer science. I am patent attorney who has worked with just about every major technology firm in this country. I’ve written patents for some of the devices that you have probably used.

I have also studied computer algorithms and theoretical computer science at one of the top schools in the country as a graduate student. I understand this stuff very well.

NWPAMay 12, 2013 11:07 am

What I see (the big picture) is anti software patent groups exploiting the ignorance of judges.

Lourie is telling us that software is discovered. Do you think that? That bubble sort was discovered and as such is a natural law.

Gene QuinnMay 12, 2013 11:32 am

Paul-

The fact that you need to define math is telling in and of itself.

You say: “Mathematics is the manipulation of the meaningless symbols…”

That is one of the more absurd things I have ever read. 1 + 1 = 2 is not a manipulation of meaningless symbols. It is descriptive of reality. Math describes. You can pretend that math is abstract and theoretical, but we all know that is not the case. Scientists and engineers use math to describe the world around us and the relationships that exist.

You say: “A computer program describes the properties and interactions of idealized objects…”

Again, utter fantasy. A computer program is written to accomplish a task. The code tells the computer what to do, how to do it and when to do it.

You say: “nobody has ever claimed that all mathematics is software…”

Again, wrong. Perhaps you are not all that familiar with Groklaw or the ramblings of the so-called experts on the topic, or those who are first level thinkers who believe they are experts. They say: “math is not patentable therefore software is not patentable because it is math.” Nonsense. The fact that you are unfamiliar with the ridiculous arguments being hurled and say “nobody has ever…” raises questions about how much you really do know about the issues and the debate. It seems your knowledge is quite shallow and familiarity with the nonsense being spewed is minimal.

Math is simply not software. You cannot write mathematical equations and get a computer to do anything, period. You know it, I know it and everyone who is intellectually honest knows that.

Math is descriptive and does not direct action.

Software directs action.

This is self evident and the fact that you choose to ignore the absolute factual reality of the matter speaks volumes about you.

-Gene

AnonMay 12, 2013 11:32 am

Paul,

Your question at 84 is not intelligible. It implies a meaning behind the 101 cases that I do not think is actually there.

I think in part, because you rely on the Benson case on its own feet, and fail to see how that case was modified in subsequent cases (don’t be too upset by this mistake – I see quite a few people in the legal world making the same mistake).

I also think that you in particular fall into the crowd of those not understanding the legal world. Your expressed views here beg that software be treated solely on a desired end result and ignore what the patent law’s very existence entails. A critical flaw can be seen throughout the anti-software patent arguments in the alignment of those very same arguments being used against ALL patents (arguments against the patent system in total). To the extent that such arguments are a dead letter for the removal of the patent system completely, they likewise must fail for the removal of a particular technology whose very purpose is utility.

My point 4) above is critical. If you don’t accept that point, you are not in the right universe. We will have to agree to disagree on the most basic of legal principles involved in this subject.

Paul JohnsonMay 12, 2013 11:56 am

@Gene

These are simply a range of accepted definitions, each of which has its own perspective on what mathematics is (somewhat like the story of the 7 blind men and the elephant). I was trying to show that software is mathematics according to a number of such definitions. Again I ask you: how do you define mathematics? At present all we have is your bare assertion that software is “self evidently” not part of mathematics. Since the opposite is clearly evident to me, we must dig deeper to determine the root of our disagreement.

You write that the formalist definition of mathematics is “absurd”. However it is a perfectly valid description of one approach to mathematics, and one that I studied at University. Briefly, in the late 19th century mathematicians became uncomfortably aware of the lack of firm logical foundations for everything they had built. This led to the Hilbert program (http://en.wikipedia.org/wiki/Hilbert%27s_program) which takes this view in order to prevent our physical intuition (for example, about the “meaning” of integers) leading us into logical errors.

You try to refute my statement that a computer program describes the properties and interactions of idealised objects by presenting another view of what a computer program is (a sequence of instructions). While your statement is true, it does not contradict mine. And when I work on a computer program I assure you that the properties and interactions of the idealised objects it describes are at the forefront of my mind.

You then say that many people on Groklaw (which I do read) have claimed that all math is software. Perhaps you need to read it more carefully: we say that all software is math, not that all math is software.

Your distinction between “descriptive” math and “directive” software has more substance, although declarative languages such as Prolog and Haskell allow one to write software without an explicit sequence of steps. Meanwhile mathematicians have long recognised the concept of an “algorithm”, which is a sequence of steps. The sieve of Eratosthenes is probably the earliest known example, and demonstrates that mathematics can also be directive. So in between declarative programming languages and directive mathematical algorithms I don’t think the distinction is sufficiently clear cut to be useful.

Paul JohnsonMay 12, 2013 12:09 pm

@Anon: I thought I was reasonably familiar with the reasoning in all three cases, although I admit I haven’t gone through them word by word. Could you outline the way that Benson has been modified?

AnonMay 12, 2013 12:13 pm

Benson was modified per Diehr and captured in the Bilski decision.

NWPAMay 12, 2013 12:14 pm

@Paul

You may ask yourself: black box question: a computer that detects breast cancer. You send it x-rays and it comes back with no or highlights areas with lumps that should be biopsied. Why should it matter if it is a special purpose computer or software? And how in the world could your term abstract apply to one and not the other?

That is simply, forgive me, but not logical. And, if you are a mathematician, I think you would agree.

AnonMay 12, 2013 12:15 pm

Paul – also note the very limited definition (legal) used with algorithm in the cases.

Ron HiltonMay 12, 2013 12:18 pm

Having degrees in both Mathematics and Engineering, it was repeatedly emphasized to me during my college education that math is a human creation. It is a language, which may be studied in its own right as a pure abstraction, and/or may be applied to various practical uses, such as physics, chemistry, engineering, computer programming, business methods, and so forth. Pure math is not patentable. And that is not because it was “discovered” – even if the invention of some math may have been motivated by observation of the physical world, which is true of much of non-mathematical human language as well. However, when math is applied to create something that does not exist in nature, then that become patentable subject matter, which, if it is also novel, non-obvious, enablingly described, and meets all the other statutory requirments, could receive patent protection.

AnonMay 12, 2013 12:21 pm

The absence of the acceptance (or understanding) of the equivalency of the ‘wares’ (software, firmware, hardware), can only be explained by the improper subjective desire of a particular end result.

There is no logical way of getting there otherwise – and is only more evidence of the lack of knowledge of the legal workings involved (ignores how the language of a patent claim works).

Paul JohnsonMay 12, 2013 12:29 pm

NWPA at 84: The question of whether mathematical proofs are “discovered” or “invented” is an open philosophical question amongst mathematicians. I don’t think it has any bearing on their patentability, and I think the same goes for algorithms.

I think that the fact that the bubble sort algorithm always produces a correctly sorted list is as much a natural law as Pythagoras’ theorem.

NWPAMay 12, 2013 1:16 pm

>>That is simply, forgive me, but not logical. And, if you are a mathematician, I think you would agree.

And, if we want to get real about this, then let’s go further. If you are trained in math, then how could one computer perform the same function as another computer, and one not have structure? =><= That means that software does have structure.

JodiMay 12, 2013 1:28 pm

Jesse,

honestly, you’re making no headway with your whole argument about if it’s implemented in hardware then it’s patentable if it’s implemented in software. So Google/Stanford original PageRank patent is not valid because it involved software (at some level) but if they had it done in purely hardware with electrical signals etc then it would be patentable?

Hold your horses – where did you get the idea someone is patenting what people think?! In actuality, there are no “software patents” – they’re all tied to hardware/machines.

> You can patent the machine that implements the instruction cycle.

So now we’re back to where do YOU draw the line on what’s hardware and software. Everyone knows that hardware and software are interchangeable – so what percentages of software and hardware in a machine makes something patentable in your world?

JodiMay 12, 2013 1:50 pm

The gold nugget for me in this debate is NWPA’s #21:

> point is that the methods are designed for computers. The methods are new and invented (not discovered).

1) Apple’s pinch to zoom: cellphones existed before 2007, humans had fingers before 2007, and humans used those fingers before 2007 – but humans did not apply their fingers on a touch screen with data in a pinching motion to zoom in on or enlarge that data.

2) Google’s PageRank: web pages existed before 1997, and search engines parsed and indexed web pages before 1997, but search engines did not use HTML links from another page as a factor for ranking (and furthermore the strength/power of the domain those backlinks came from).

NOTE: I likely did not represent the above 2 examples perfectly – point was to give high-level examples of 2 of the most relevant high profile innovations in recent software.

Both clearly show “The methods were invented not discovered” – and the trial and error and experimentation to boil things down to such beautiful simplicity is what should be incentivized with patents.

JodiMay 12, 2013 1:53 pm

Correction to #99 – typo that left out “but not”:

Jesse,

honestly, you’re making no headway with your whole argument about if it’s implemented in hardware then it’s patentable BUT NOT if it’s implemented in software. So Google/Stanford original PageRank patent is not valid because it involved software (at some level) but if they had it done in purely hardware with electrical signals etc then it would be patentable?

> Processors are machines, patent the processor. Software is nothing but a list of instructions for a processor to follow. Just like a recipe, and like a recipe, not patentable. You can copyright it though.

Copyrights only protect individual lines of software code but affords no safeguard to the inventive ideas underlying that code. Thus, by reverse-engineering software without copying its code directly, or merely by interpolating fairly minor changes into the code itself, a copycat could use and sell a new software product with relative impunity under copyright law.

Paul JohnsonMay 12, 2013 3:40 pm

The distinction between a computer program and an equivalent special-purpose machine seems to me to be perfectly clear. It is true that either one can be derived from a description of the algorithm, but the special-purpose machine is nevertheless an arrangement of matter in a specific configuration.

The same cannot be said of a computer program; it is not an arrangement of matter or energy, but of information. The Allapat case (thanks for pointing me at it) led, if I understand correctly, to “Beauregard Claims” in which a computer with a storage medium is recited as a way of turning the recitation of an abstract algorithm into the recitation of a specific machine. But the same court that decided Allapat has now effectively reversed itself, given more recent Supreme Court decisions that change the logic. See the Alice judgement starting at page 27, which considers this in detail. I don’t fully understand how the law works, but I don’t think you can stand on an old precedent in the face of more recent cases that contradict it, given that the more recent cases are built on a decision framework handed down from a higher court. Therefore I cannot see that there is a problem in distinguishing between a special-purpose machine hard-wired to do exactly one thing and a general purpose computer running a program.

jesseMay 12, 2013 3:43 pm

Ideas are abstract. You don’t patent the abstract idea, you patent the invention.

The software, being abstract mathematics, can’t be patented. copyright it.

If the hardware is unique and new, then patent it. As far as the percentage of hardware goes, that is the only part patentable.

NWPAMay 12, 2013 4:02 pm

>>The same cannot be said of a computer program; it is not an arrangement of matter or energy, but of information

@Paul

How is software represented in a computer? By information? Not electrons? Really!!! Wow.

JustinMay 12, 2013 4:14 pm

@Gene:

“Under this logic then robots aren’t patentable either because humans could do what robots do. Robots only do it faster and cheaper.”

How do you get this? The original comment didn’t say that a computer itself is not patentable, only that a process that is already known and can be performed by man shouldn’t be patentable just because it can be performed faster by a computer. In your example, of course the robots themselves could be patented, just not the process of “putting together a car with robots instead of people because it’s faster.”

jesseMay 12, 2013 4:16 pm

@Jodi

> The difference is that you are trying to patent what people think.

“Hold your horses – where did you get the idea someone is patenting what people think?! In actuality, there are no “software patents” – they’re all tied to hardware/machines.”

No they are not – they are abstract mathematical algorithms, which are ideas, the written thoughts of the developer as expressed in the software notation (of whatever language).

> You can patent the machine that implements the instruction cycle.

“So now we’re back to where do YOU draw the line on what’s hardware and software. Everyone knows that hardware and software are interchangeable – so what percentages of software and hardware in a machine makes something patentable in your world?”

(let me try this in two ways:)

The implementation of the instruction cycle uses (in current technology) the implementation of boolean algebra (which is abstract), as emulated using wires, transistors, resistors, voltage levels/currents within a restricted operating range for those items. Note, this is an emulation within engineering limits, operation outside those limits will not meet the definitions of boolean algebra.

That implementation of the boolean algebra expression of the instruction cycle is hardware, a construct of matter and energy, and thus patentable.

(now the other way)

Boolean algebra is a mathematical language used to evaluate specific expressions used to describe the instruction cycle. That boolean algebra expression is an abstract, as is the instruction cycle described by boolean algebra. Here we have a two level abstraction – first boolean algebra… used to describe another abstraction – the instruction cycle, and the operations available to that instruction cycle.

The boolean algebra expressions are emulated by the transistors, wires, resistors, voltage levels/currents. This emulation is the hardware, and is patentable.

Observe the result- we have a piece of hardware, emulating an abstract boolean algebra expression, which describes another abstract mathematical construct – the instruction cycle.

And that is before even writing the software which is yet another level of abstraction. Only the lowest level (the emulation of boolean algebra expressions) is patentable as that is the only thing dealing with physical matter and energy.

Everything else is just information in the form of mathematical expressions.

jesseMay 12, 2013 4:20 pm

@NWPA

“How is software represented in a computer? By information? Not electrons? Really!!! Wow.”

Surprising isn’t it. It is just like a novel purchased at a bookstore. The novel isn’t the paper. Nor is it the ink.

It is in the information stored by the arrangement of ink on paper.

And just like the novel, it is subject to copyright.

But you can’t patent the information.

AnonMay 12, 2013 4:22 pm

jesse,

You are FAR too caught up in thinking that “software” is “thinking.”

AnonMay 12, 2013 4:27 pm

jesse,

The software = novel also quite misses the point. See my post at 82 above. It does not appear that you are grasping the legal angle here.

jesseMay 12, 2013 4:32 pm

@Jodi
“Copyrights only protect individual lines of software code but affords no safeguard to the inventive ideas underlying that code. Thus, by reverse-engineering software without copying its code directly, or merely by interpolating fairly minor changes into the code itself, a copycat could use and sell a new software product with relative impunity under copyright law.”

No – there is such a thing as “derived copyright”, which ends up requiring two copyrights and that covers the “interpolating fairly minor changes”. And it isn’t done with impunity, as the largest software company has found out several times having been convicted of copyright infringement for doing so.

Now deriving the mathematics from the software is perfectly legal. What is done is to first reverse engineer the underlying language of the program. From that you then derive the requirements/specifications for the program.

When done properly, the derived requirements/specifications are passed to a new team of developers, which then create new mathematical expressions that meet the requirements/specifications.

This is the “clean room development” for creating software that is compatible with the original.

jesseMay 12, 2013 4:39 pm

@Anon

“The software = novel also quite misses the point. See my post at 82 above. It does not appear that you are grasping the legal angle here.”

No, it is directly to the point. The problem you have is identifying the active element.

The software itself does nothing. It is just written directions.

The PROCESSOR does things, but it is already patented. And it can do anything it has been designed to do. It is designed to read instructions, carry them out, and then start over.

Like written directions, software is subject to copyright.

JustinMay 12, 2013 4:49 pm

Paul says that “nobody has ever claimed that all mathematics is software” Gene disagrees, gives examples of people saying that all software is mathematics, proceeds to ridicule everyone.

Priceless.

jesseMay 12, 2013 4:51 pm

@Jodi

“The gold nugget for me in this debate is NWPA’s #21:

> point is that the methods are designed for computers. The methods are new and invented (not discovered).
…
Both clearly show “The methods were invented not discovered” – and the trial and error and experimentation to boil things down to such beautiful simplicity is what should be incentivized with patents.”

Ummm… pinching things to shrink them has been done for ages. Cooks do this to form the patterns around pies. Pinching dough and pulling on it is how pizza dough is spread out by hand (along with other methods). I used to do both with silly putty to distort images.

All that was done by Apple was to create mathematical expressions to simulate the activity. The actual CREATIVE aspect had nothing to do with the expressions – it had to do with the idea of a “pinch to zoom”.

Once seen, it is a trivial operation.

jesseMay 12, 2013 4:55 pm

@Anon
“You are FAR too caught up in thinking that “software” is “thinking.””

No, “software” is the written expression of abstract mathematical concepts.

Do you have a problem with programmers thinking about what they are writing?

jesseMay 12, 2013 5:17 pm

@Gene
“Seriously. The statement is self evident to anyone who if familiar with mathematics and software and who is intellectually honest. Software is a series of instructions that tell a machine how to operate. Mathematics is NOT a series of instructions that tells a machine how to operate. Mathematics is descriptive. Software is directive.”

Mathematical algorithms ARE a series of instructions that tells a machine how to operate. Just think about the mathematical algorithm to add two two digit numbers together. That is part of mathematics.

No, software is not directive. It is completely descriptive as is any other recipe. It describes the steps to accomplish some abstract goal.

A processor becomes directed only when following the sequence of instructions. It is the action of “following” that it becomes “directed”.

The software itself is totally passive.

jesseMay 12, 2013 5:58 pm

@Gene

“The fact that you need to define math is telling in and of itself.

You say: “Mathematics is the manipulation of the meaningless symbols…”

That is one of the more absurd things I have ever read. 1 + 1 = 2 is not a manipulation of meaningless symbols. It is descriptive of reality. Math describes. You can pretend that math is abstract and theoretical, but we all know that is not the case. Scientists and engineers use math to describe the world around us and the relationships that exist.”

So what is the reality of “1”? or “2”?

Math describes, but not necessarily describes reality. It is a language, and thus must be abstract. Try pointing to a thing called “mathematics”.

“You say: “A computer program describes the properties and interactions of idealized objects…”

Again, utter fantasy. A computer program is written to accomplish a task. The code tells the computer what to do, how to do it and when to do it.”

The “code” does nothing. A processor can only follow instructions. And nothing a computer can do has anything to do with reality. It only manipulates symbols.

“You say: “nobody has ever claimed that all mathematics is software…”

Again, wrong. Perhaps you are not all that familiar with Groklaw or the ramblings of the so-called experts on the topic, or those who are first level thinkers who believe they are experts. They say: “math is not patentable therefore software is not patentable because it is math.” Nonsense. The fact that you are unfamiliar with the ridiculous arguments being hurled and say “nobody has ever…” raises questions about how much you really do know about the issues and the debate. It seems your knowledge is quite shallow and familiarity with the nonsense being spewed is minimal.”

Perhaps you haven’t been paying attention. A subset is not necessarily the whole. Just as an apple is a subset of a bushel of apples, that does not make the apple a bushel.

“Math is simply not software. You cannot write mathematical equations and get a computer to do anything, period. You know it, I know it and everyone who is intellectually honest knows that.”

Actually, I spent much of my career doing just that. Originally writing formulas in the language of FORTRAN (remember? FORmula TRANslator), later in C.

“Math is descriptive and does not direct action.”
I’ll accept that.

“Software directs action.”

Only when the software gets an active processor. The software itself only describes the action.

“This is self evident and the fact that you choose to ignore the absolute factual reality of the matter speaks volumes about you.”

I can say the same about the fact that you “choose to ignore the absolute factual reality” of mathematics.

It is a language. Software is written in a mathematical language. Anything done with a mathematical processor is abstract.

jesseMay 12, 2013 6:12 pm

@NWA
“And, if we want to get real about this, then let’s go further. If you are trained in math, then how could one computer perform the same function as another computer, and one not have structure? =><= That means that software does have structure."

That is what virtual machines are for (in emulation of another).

One processor is given the mathematical description of another. Then the software is then given to the description…

It usually runs slower (but not always, depends on both the described processor, and the processor the description is about – PDP-8 processor emulation running on a X86-64 is many times faster than the real PDP-8), but that isn't relevant to the abstract description. It isn't relevant to the software either. The only "structure" involved is in the mathematical description of the emulated processor.

AnonMay 12, 2013 6:33 pm

jesse,

You ask me “Do you have a problem with programmers thinking about what they are writing?” and I directly answer you: no, I do not have a problem with programmers thinking about what they are writing.

I will ask you though (and again), to recognize that software is not thinking. It is not even mere writing. You need to recognize that software is a creation and a machine component. It is created to DO something and thus falls squarely and rightfully into the domain of those things afforded patent protection.

Do you admit as much?

As for as your self-styled definition of “abstract,” I grant that may be one that you believe in with your whole heart. The problem you have is that your heart and your definition are not in accord with what that word means from a legal and physical and factual basis.

You are not in the right universe, let alone the right ballpark.

AnonMay 12, 2013 6:41 pm

jesse,

For some reason, you think passivity is some sort of key. I don’t know why you think this.

Ready examples of passive items afforded patent protection – components of other ‘machines’ are abundant:
A rivet, sitting alone in a box, and that only works for its intended purpose of holding things together after it has been picked up, used with a rivet fun and permanently deformed.

A bullet, sitting in a box (or loaded in a chamber), entirely passive unless used in the action of firing the gun.

Tire tread patterns, imprinted on a tire, that tire sitting on a shelf, and not functional until taken off the shelf and installed into a vehicle, and that vehicle being powered up and moved.

You need to be a bit more open minded in your position.

AnonMay 12, 2013 6:47 pm

jesse,

You quite in fact are missing the point of my posts. Your insistence on copyright is an obvious strawman.

Have you not read what I have posted? Do you not understand the differences in protection afforded by the different Intellectual Property mechanisms? This is black letter law – stuff that you are not at liberty to misconstrue or dismiss.

Do you understand that the nature of software affords more than a single type of protection?

JodiMay 12, 2013 6:52 pm

Jesse,

Not only are you showing your lack of understanding about innovation but you are contradicting yourself now too. In #113 you said:

> largest software company has found out several times having been convicted of copyright infringement for doing so

then:

> This is the “clean room development” for creating software that is compatible with the original.

First of all you say copyright is good enough to protecting software but then in the same post you elaborate on how to get around copyrights! Clean room implementation is actually one of the main weaknesses of protecting software innovations. Do you understand that true innovation is hard? Do you agree that creating something truly innovative should be protected? …because your talk about “clean room development” indicates that you are looking at copying and stealing others hard-earned innovations.

JodiMay 12, 2013 7:40 pm

Jesse:

In #101 I wrote:

> 1) Apple’s pinch to zoom: cellphones existed before 2007, humans had fingers before 2007, and humans used those fingers before 2007 – but humans did not apply their fingers on a touch screen with data in a pinching motion to zoom in on or enlarge that data.

In response, in #116 Jesse writes:

> Ummm… pinching things to shrink them has been done for ages. Cooks do this to form the patterns around pies. Pinching dough and pulling on it is how pizza dough is spread out by hand (along with other methods). I used to do both with silly putty to distort images.

Seriously?!?! You are seriously saying a cook pinching a pie is the same thing as a smartphone user pinching to zoom in on data? …and so therefore by your demented logic Apple’s innovation isn’t worth protecting. Right. …oh wait – but also in your world if it’s implemented 100% in hardware THEN it’s ok to patent it – otherwise rely on software copyrights.

martin snyderMay 12, 2013 7:42 pm

Arguments about pencil and paper and weather a million monkeys can code a browser are not pertinent.

The question is this: why don’t we patent movies, songs, and books? The reason is that those items are very complex and by definition include the contributions of untold other artists in their creations. Software is similar and should enjoy copyright protection rather than patent protection. The devices that operate and present software should get patents.

For the argument that you can create a circuit that acts like software, than the design of the circuit should get a copyright and any non obvious and non anticipated physical embodiment of the circuit should get a patent. Business method patents should be trademarks or copyrights in their expressions and handled for infringement on those basis.

Also and critically in the real world: writing code is much like writing books or movies. Seeing another party do a good job of it only helps so much; there are many barriers to copying other than the legal monopoly of a patent, and likewise many incentives to invest without that monopoly in place.

The Supreme Court needs to simply arrive at that obvious conclusion, that software and methods are ideas which should be copyrighted. THAT would reform the entire IP regime back to a reasonable state at a stroke.

Wayne BoreanMay 12, 2013 7:48 pm

There’s so many comments I’m not going to try an address them all directly, because I just don’t have time. Gene however does get a direct comment, since he runs the place.

Gene,

I’ve been on Groklaw almost since it started. I’m not necessarily very welcome there, because I say things which aren’t always politically correct. I have my own views, and as you may have noticed, they tend to not match what anyone else on the planet thinks. Ever.

In fact I’m far more cynical about patents than anyone on Groklaw is. I once asked them to prove to me that ANY patents were of value, since they claimed that hardware patents did have value. Curiously over a couple of weeks none of them were able to do that.

But I can’t really prove that there aren’t hardware patents that don’t have value.

Which is why I’m very careful to say that everything is situation dependent. Trying to claim that any specific set of rules will cover all eventualities is like trying to claim that the Ten Commandments should be absolute during Wartime, and that a soldier should abide by “Though Shalt Not Kill”.

Now that I’ve got this out of the way, let’s talk a couple of specific situations that I know about. There’s a company called Johnson Matthey, who many of you probably know because they are a precious metal refiner. They also manufacture emission control systems. Johnson Matthey was granted a patent for a “device which produced Nitrogen Dioxide (NO2) for the reduction of Diesel Particulate in a diesel particulate filter” which covered a device called a “Continuously Regenerating Trap” or CRT.

Sounds fine, right?

Now I worked in the Emissions Control business for over ten years. I understand how the technology works, and when I say I understand it, I mean pretty well all of it in gross terms. There are minor details I might not know, but I know all the major stuff. I had too. I was selling it to multi-nationals bigger than Microsoft and Apple, and I wasn’t dealing with management, I was dealing with Engineering. If I didn’t have a clue, they would have known.

Diesel Particulate is what we call Elemental Carbon or C6. It has a really high combustion temperature. I don’t have access to the technical papers anymore, but by memory it is about 700 or 800 degrees celsius. Since diesel exhaust usually runs around 300-400 degrees celsius, the soot will never burn in the exhaust.

The “trap” part is really interesting from a technical standpoint, being a ceramic filter (this is simplified for non-technical minds from an emissions control standpoint). It has nano pores which allow air to flow through it, but traps the particulate (which is also nano sized) on the inner face.

So how do you burn off the soot? Simple. The way Johnson Matthey’s patent describes, and the way it was done for fifteen to twenty years prior to the patent being issued was to use a platinum catalyst to oxidize Nitrogen Oxide (NO) to Nitrogen Dioxide (NO2). Nitrogen Dioxide is unstable, it oxidizes C6 at temperatures as low as 275 degrees celsius.

That’s why the patent was invalid. It was for something that was already being done. The patent examiner didn’t know this, and quite probably the patent lawyer at Johnson Matthey didn’t know this either. The engineer who wrote up the operation probably did, at least if he or she was any good.

I tried to look up the exact patent, but Johnson Matthey has removed it from their current literature, and the company has so many patents that searching for it was, well, interesting. Curiously they never tried to enforce it. Of course if they had, it would have caused a patent thermonuclear war which would have made the current mess between Apple and Google look like a schoolyard snowball fight.

You’ll note that I’m being very non-specific on a lot of details. I’m still under non-disclosure agreements, and I’m not about to break them. Everything I’ve mentioned above is publicly available on the internet, if you know where to look.

Oh, and as an aside. You can also use a flamethrower to burn off the soot. Someone mentioned a computerized system he was working on. The company I was working for designed a computerized flamethrower of sorts which would burn the soot off the filter. The basics were relatively simple, there were a series of sensors which checked for certain conditions. Depending upon the conditions certain actions were taken. This isn’t rocket science.

I also was involved with a system which was used for retro-fitting LPG fuelled engines with a closed loop control system and catalytic converter. The control system wasn’t fuel injection, but it used some of the same principles. Again, this wasn’t rocket science. It used certain basic inputs, and the computer reacted to those inputs, sending signals to devices which controlled the fuel flow. The major factor which made this device sell like hotcakes was the built in diagnostics, which again, wasn’t rocket science. It added a bit of cost to the device, but made things a lot more convenient for the user and technician maintaining the engine. It also had the happy affect of reducing absenteeism by 20% at one company – a company that was fully compliant with both Federal and State Health and Safety codes before fitting the devices. I can’t tell you who passed this information on to us, as it was in confidence, but he estimated that the BlueCAT300 devices actually paid for themselves in less than a year!

So let’s go back to the Internal Combustion Engine. Was it an invention? Probably.

Now we get to the fun part. Steam (external combustion) cars were already in existence, if not common. So was placing an internal combustion engine in a car obvious? I’d say yes.

Bicycles were in existence, as were tricycles. Were adding internal combustion engines an obvious idea? I’d say yes.

Was the Otto Cycle as compared to the Two Stroke Cycle as compared to the Diesel Cycle inventions? Good question. I’m really not sure. Early Otto Cycle engines had a nasty habit of running on, so the later Diesel Cycle might be considered obvious. The Two Stroke Cycle again could be considered obvious, as it was an attempt to gain more power from the same displacement as an Otto Cycle engine.

Of course you have to consider that everyone knew about steam engines, and how inefficient they were. Burning fuel in the cylinders is something that was tried for years, including believe or not coal dust and gun powder. That may mitigate against the Internal Combustion Engine being “not-obvious”.

One of the things I did a while back was try to track innovation by communications speed, and I found someone had beat me to it. The conclusion was that innovation was related to communications speed in some way, but that it wasn’t linear, and it wasn’t exponential. No, I can’t remember where I found it right now. It’s on my to-do list. If I find it, I’ll pass it along to Gene, because I suspect he’ll be interested.

Now to toss a dead, stinking fish into the center of the conversation.

Did you know that there has been no Innovations since 1945? Seriously. Everything that has happened since 1945 is essentially a refinement of an existing idea. Some research for a novel I’m writing brought me to this idea. The conclusion is very tentative. No, I can’t definitely prove it. But I’ve argued the point with several people, and no one has been able to come up with anything that I haven’t been able to track back to a technology that existed before 1945.

And that’s pretty scary.

Wayne

JodiMay 12, 2013 9:44 pm

Jesse, in #106 you said:

> The software, being abstract mathematics, can’t be patented. copyright it.
>
> If the hardware is unique and new, then patent it. As far as the percentage of hardware goes, that is the only part patentable.

Ok, so in your world – if Google’s PageRank is implemented 100% completely in hardware then it’s patentable – otherwise if even ONE SINGLE LINE of software code is used to carry it out then Google can’t patent it and should only copyright it. Am I getting this correctly?!?

What if Google uses a computer where some components are updateable (e.g. firmware, BIOS, or even an operating system) – then would they need to forget about the PageRank patent and switch to copyright??

What if all the instructions that are used to service a search query coming into Google Search are 100% implemented in hardware – but *SOMEWHERE* in the data center some tiny piece of software is used (e.g. to control the air conditioning, alerts to administrators, etc…) – then what does Google use to protect their innovation? …do they need to switch PageRank to copyrights because of one air conditioner in the building has a few lines of updateable code?

Oh shoot, now what if some administrator walks into Google’s data center with a smartphone in his pocket that has software running on it somewhere (let’s say the Email app is implemented in software) and that air conditioner sends an Email to that smartphone user – does Google need to throw out any patents filed and switch to copyrights?

Oh shoot, what about config files? What if a configuration file exists somewhere in that Google data center – it’s updateable right? So if a patent touches that (reads or writes to it) – then does Google need to drop the patent and switch to copyrights?

Oh shoot, what’s an efficient way to monitor the dozen or so Google data centers whether they ever run updateable code that somewhere touches a patent (so you can invalidate it)? Don’t we need some kind of “Patent Police Force”? Publicly, we know of something like 12 Google data centers – who monitors companies like Google to ensure they inform the PPF (“Patent Police Force”) of all their data centers (so they can be properly monitored)? This is great – now we’ve created 2 new Government entities with new rules and regulations – the more govt entities the higher our exports right?

I mean, you’ve got this all figured out right down to the voltages and transistors and boolean algebra so you’ve got to tell us how this would all work!!! How does a company like Google protect their PageRank innovation?

AnonMay 12, 2013 10:00 pm

Martin Snyder states: “The question is this: why don’t we patent movies, songs, and books? The reason is that those items are very complex and by definition include the contributions of untold other artists in their creations. ”

Martin, I suggest that you don’t open your mouth (figuratively) and speak about things you don’t know about. I think you need to understand far more about the legal nature of the useful arts.

A further (open) comment to all those that state that copyright is enough AND that software is math: I hope you realize that you cannot actually copyright pure math. The very reasons pushed for removing software (as math) from patent protection apply as well to removing software (as math) from copyright protection.

martin snyderMay 12, 2013 10:16 pm

Anon get a name and show yourself before using tone with me. I don’t think software is math, I don’t even think math software is math. As to my understanding of the useful arts; I’ve made money in the software industry and been around patent cases.

What you are doesn’t mean anything to me, but show something by answering the question: why don’t we patent movies?

AnonMay 12, 2013 10:27 pm

Martin,

Again with the need of yours for identification?

Really?

Please – educate yourself first. Worry about that. Your “I’ve been around” line sounds too much like you merely slept at a Holiday Inn last night.

MikeMay 12, 2013 11:41 pm

@Gene:
“You say: “Mathematics is the manipulation of the meaningless symbols…”

That is one of the more absurd things I have ever read. ”
That is what mathematicians say about it.

“You can pretend that math is abstract and theoretical, but we all know that is not the case. ”
Of course math is abstract. What do you think it is if it isn’t abstract?

“You say: “nobody has ever claimed that all mathematics is software…”

Again, wrong. Perhaps you are not all that familiar with Groklaw or the ramblings of the so-called experts on the topic, or those who are first level thinkers who believe they are experts. ”
I think you are the one not familiar with the arguments presented on Groklaw. As a quick comparison, I went to Groklaw and looked at two of the articles on this subject, and had my browser’s search function count the number of occurrences of “software is mathematics” (84 in one article and 17 in the other) and “mathematics is software” (zero occurrences in both articles).

If you still think the argument presented on Groklaw is that “mathematics is software”, perhaps you can find a relevant quote to prove it.

“Math is simply not software. You cannot write mathematical equations and get a computer to do anything, period.”
Not true. I can provide sample code in Haskell that computes fibonacci numbers that is just a set of mathematical equations.

More importantly, this seems to imply that you think that mathematical equations are the only kind of mathematical thing. That’s not correct.

MikeMay 12, 2013 11:59 pm

@Gene:
“Also, I’ll just point out that you didn’t offer a solution for the IPWatchdog.com homepage. LOL. So easy to prove, yet you can’t solve or reduce a simple piece of HTML/PHP. LOL. ”
What do you mean by “solution”? You never bothered to say.

I don’t see what’s funny about someone not answering a poorly specified challenge.

MikeMay 13, 2013 12:05 am

@Anon:
“4) BY AND LARGE, software is written to do something. It’s very essence is utilitarian. “DOING” cannot be emphasized enough. Thus, BY AND LARGE, software naturally falls under the protection of patents. This is a critical point, and one often simply disregarded by those who desire software to not fall under patent protection.”
It is very interesting that you say this. I can’t see any real difference between saying a piece of software does something and saying that it describes a computation. Why is this “doing” important? Is there some legal ramifications of something being considered a “doing” thing?

Ron HiltonMay 13, 2013 1:16 am

I/m sorry to break the news to the free software crowd, but software is and will always remain patentable, because it has significant commercial value, and therefore worth the investment to protect it. When software was truly free in the early days of computing, there was no compelling reason to patent it. But those days are long gone.

jesseMay 13, 2013 1:19 am

@ANON
“I will ask you though (and again), to recognize that software is not thinking. It is not even mere writing. You need to recognize that software is a creation and a machine component. It is created to DO something and thus falls squarely and rightfully into the domain of those things afforded patent protection.”

How is software not “written”? It is a language of mathematics, and used for communication. Languages are the expression of thought.

“Do you admit as much?”

Why should I “admit” to a falsehood?

“As for as your self-styled definition of “abstract,” I grant that may be one that you believe in with your whole heart. The problem you have is that your heart and your definition are not in accord with what that word means from a legal and physical and factual basis.”

Software has no physical existence. It is pure information, and thus abstract.

“You are not in the right universe, let alone the right ballpark.”

My universe is perfectly sane. The experts in the fields of mathematics agree.

“For some reason, you think passivity is some sort of key. I don’t know why you think this.”

No, not a key. It is just a property of all written works.

“Ready examples of passive items afforded patent protection – components of other ‘machines’ are abundant:
A rivet, sitting alone in a box, and that only works for its intended purpose of holding things together after it has been picked up, used with a rivet fun and permanently deformed.”

A rivit is a product of matter, and thus patentable.

“A bullet, sitting in a box (or loaded in a chamber), entirely passive unless used in the action of firing the gun.”

A bullet is a product of matter, and thus patentable, though I believe the patent ran out a LONG time ago.

“Tire tread patterns, imprinted on a tire, that tire sitting on a shelf, and not functional until taken off the shelf and installed into a vehicle, and that vehicle being powered up and moved.”

Tires are a product of matter, and are patentable. I can use (as artists have) that pattern in a work of art without requiring a license to that pattern. The pattern itself is abstract.

“You need to be a bit more open minded in your position.”

You need to be abit more open minded about the abstract.

“Do you understand that the nature of software affords more than a single type of protection?”

Do you understand that software is nothing but a written language? That that language is one of the languages of mathematics? And that languages and mathematics are not patentable subject matter?

jesseMay 13, 2013 1:29 am

@Jodi

“First of all you say copyright is good enough to protecting software but then in the same post you elaborate on how to get around copyrights! Clean room implementation is actually one of the main weaknesses of protecting software innovations. Do you understand that true innovation is hard? Do you agree that creating something truly innovative should be protected? …because your talk about “clean room development” indicates that you are looking at copying and stealing others hard-earned innovations.”

The mathematics used in the second implementation do not necessarily match the original.

And just because something is hard does not automatically make it patentable. Abstract ideas are not supposed to be patentable. Neither is mathematics. Neither are languages.

Politics is hard – why not patent it?
Law is also hard – why not patent it?

Both are abstract ideas, and thus are not patentable.

> 1) Apple’s pinch to zoom: cellphones existed before 2007, humans had fingers before 2007, and humans used those fingers before 2007 – but humans did not apply their fingers on a touch screen with data in a pinching motion to zoom in on or enlarge that data.

In response, in #116 Jesse writes:

> Ummm… pinching things to shrink them has been done for ages. Cooks do this to form the patterns around pies. Pinching dough and pulling on it is how pizza dough is spread out by hand (along with other methods). I used to do both with silly putty to distort images.

“Seriously?!?! You are seriously saying a cook pinching a pie is the same thing as a smartphone user pinching to zoom in on data? …and so therefore by your demented logic Apple’s innovation isn’t worth protecting. Right. …oh wait – but also in your world if it’s implemented 100% in hardware THEN it’s ok to patent it – otherwise rely on software copyrights.

If it is implemented 100% in hardware then it is a product of matter – and thus patentable. When it is software, then it is an abstract writing, a mathematical expression, and thus not patentable.

What is so hard about the concept of abstract ideas? They can only be communicated using languages, and languages can be written.

jesseMay 13, 2013 1:42 am

@Jodi

“> The software, being abstract mathematics, can’t be patented. copyright it.
>
> If the hardware is unique and new, then patent it. As far as the percentage of hardware goes, that is the only part patentable.

Ok, so in your world – if Google’s PageRank is implemented 100% completely in hardware then it’s patentable – otherwise if even ONE SINGLE LINE of software code is used to carry it out then Google can’t patent it and should only copyright it. Am I getting this correctly?!?”

Almost – only that “ONE SINGLE LINE of software code” could not be patented. And that can be copyrighted.

“What if Google uses a computer where some components are updateable (e.g. firmware, BIOS, or even an operating system) – then would they need to forget about the PageRank patent and switch to copyright??”

Firmware is software. As are BIOS systems, As are operating systems. And yes, copyright it. As a matter of fact, it already is.

“What if all the instructions that are used to service a search query coming into Google Search are 100% implemented in hardware – but *SOMEWHERE* in the data center some tiny piece of software is used (e.g. to control the air conditioning, alerts to administrators, etc…) – then what does Google use to protect their innovation? …do they need to switch PageRank to copyrights because of one air conditioner in the building has a few lines of updateable code?”

If it is 100% hardware then it should be patented as a new product of matter. What has that got to do with the air conditioner?

“Oh shoot, now what if some administrator walks into Google’s data center with a smartphone in his pocket that has software running on it somewhere (let’s say the Email app is implemented in software) and that air conditioner sends an Email to that smartphone user – does Google need to throw out any patents filed and switch to copyrights?

Oh shoot, what about config files? What if a configuration file exists somewhere in that Google data center – it’s updateable right? So if a patent touches that (reads or writes to it) – then does Google need to drop the patent and switch to copyrights?”

Configuration files are already covered by copyright.

“Oh shoot, what’s an efficient way to monitor the dozen or so Google data centers whether they ever run updateable code that somewhere touches a patent (so you can invalidate it)? Don’t we need some kind of “Patent Police Force”? Publicly, we know of something like 12 Google data centers – who monitors companies like Google to ensure they inform the PPF (“Patent Police Force”) of all their data centers (so they can be properly monitored)? This is great – now we’ve created 2 new Government entities with new rules and regulations – the more govt entities the higher our exports right?”

Isn’t that what you are doing anyway? Haven’t lawyers and politicians been busy turning a criminal investigation and law enforcement agency into a “copyright and patent police”?

“I mean, you’ve got this all figured out right down to the voltages and transistors and boolean algebra so you’ve got to tell us how this would all work!!! How does a company like Google protect their PageRank innovation?”

That would be called “Trade Secret”.

And it has worked that way for years before patents were imposed on software where it doesn’t work.

NWPAMay 13, 2013 1:46 am

@Jesse and Wayne, you appear to not be addressing my comments, but just blowing by them by repeating what you said before.

@All: I think what is needed going forward is some type of narrative that is concise about what is wrong with this opinion. I am not sure what the sound bite is for why this is wrong. I am not sure what the sound bite is for why Lemley is wrong. But, I am sure they are wrong. One of the problems with this I think is well illustrated by this string. People including Lourie and Lemley and the contributors to this board just blow by serious objections to arguments. We continuing get the argument that software has no structure. We get the argument that software is abstract. That software is math. That software is discovered and a natural law. These board contributors are not alone. I know for the educated in science/engineering many of these statements are ridiculous, but yet, they are repeated over and over and believed.

jesseMay 13, 2013 1:47 am

@Anon

…
A further (open) comment to all those that state that copyright is enough AND that software is math: I hope you realize that you cannot actually copyright pure math. The very reasons pushed for removing software (as math) from patent protection apply as well to removing software (as math) from copyright protection.”

You can copyright any written work. Mathematics is a written language, therefore it can be copyrighted. Written works were specifically stated to be the domain of copyrighted works.

jesseMay 13, 2013 1:53 am

@Ron Hilton
“I/m sorry to break the news to the free software crowd, but software is and will always remain patentable, because it has significant commercial value, and therefore worth the investment to protect it. When software was truly free in the early days of computing, there was no compelling reason to patent it. But those days are long gone.”

And yet, abstract ideas, languages, and Mathematics, are specifically listed as nonpatentable fields.

No matter how much you want it to be true, software is not supposed to be patentable.

jesseMay 13, 2013 2:07 am

@NWPA
Comment:
@Jesse and Wayne, you appear to not be addressing my comments, but just blowing by them by repeating what you said before.

@All: I think what is needed going forward is some type of narrative that is concise about what is wrong with this opinion. I am not sure what the sound bite is for why this is wrong. I am not sure what the sound bite is for why Lemley is wrong. But, I am sure they are wrong. One of the problems with this I think is well illustrated by this string. People including Lourie and Lemley and the contributors to this board just blow by serious objections to arguments. We continuing get the argument that software has no structure. We get the argument that software is abstract. That software is math. That software is discovered and a natural law. These board contributors are not alone. I know for the educated in science/engineering many of these statements are ridiculous, but yet, they are repeated over and over and believed.

We do recognize the difference between abstract ideas and physical reality. We know mathematics is an abstract language used to describe abstract ideas. We also know that software is a written expression for the communication of abstract ideas. And we know the difference between a mathematical description of reality, and reality itself.

Unfortunately, a lot of people make money by hiding that fact.

NWPAMay 13, 2013 2:08 am

The other thing about this is that there is seemingly a lot of money being thrown at killing off patents and software appears to be one of the targets. There are paid bloggers everywhere that just repeat the same thing over and over again. There is Lemley that writes papers that includes many apparent false statements. Lemley goes on the circuit and publicly speaks as much as he can to deride patents. People at parties I meet that have nothing to do with patents know who Lemley is. People have this sense of blood in the water and change and want to jump on board the Lemley wagon so they can say they were part of it.

This is like an iceberg. We are only seeing the tip and without some clear narrative we are going to lose. The Obama SCOTUS’s understanding of business and science is about at a level of a 6th grader. We can hope for no help from them. And, I think Obama in general will not be a help. He put in Kappos who was amazing, but now he believes that patents are a problem and Kappos wasn’t helping.

Jon ShieldsMay 13, 2013 2:09 am

Jodi (@128),

I’m not sure your hypotheticals (about interchanging hardware with software) are really getting at what Jesse is saying. At the very least, it doesn’t seem to be helping your argument. For example, take your following question:

“Ok, so in your world – if Google’s PageRank is implemented 100% completely in hardware then it’s patentable – otherwise if even ONE SINGLE LINE of software code is used to carry it out then Google can’t patent it and should only copyright it.”

You act like this is a flaw in a proposed hardware vs. software distinction for patentability. But at least from the perspective of the people proposing it, it is a feature — not a bug. From their perspective, allowing Google to prevent others from having any device whatsoever execute something like the pagerank algorithm should not be permitted in the first place. (This is different from the separate question of whether Google could patent a particular device hardwired to execute the pagerank algorithm.) So the fact that Google might run into trouble when it tries to swap software for hardware isn’t a problem — it’s a positive, that simply highlights how close to the line Google was in the first place.

NWPA (@85): “EVERYONE knows that software/firmware/hardware are all interchangable.”

Just because they are interchangeable doesn’t mean they are the same. I’m really not sure why you think the fact that they are interchangeable is relevant. The fact that they are interchangeable is orthogonal to the question at hand, which is whether software is patentable. Of course, a legal opinion that created a hardware/software distinction might be upsetting to those who don’t want such a distinction, because a patent on a particular machine that was hardwired to implement an algorithm would be much easier to work around for many practical purposes. But that doesn’t mean such a distinction is wrong when it comes to what is patentable subject matter, or that hardware and software are literally the same.

NWPAMay 13, 2013 2:17 am

@Jesse:

Gene’s point that software is instructions is a great point. You keep saying it is abstract, but, in reality, read Newman’s dissent in Bilski as to what abstract means in engineering. The fact that you are working in software at an abstract level does not mean that it is abstract in patent terms.

Software is abstract for a programmer and then is turned into something that is not abstract. That is the abstract chain that every good engineer was taught to work on in college.

So, the question is are the instructions to the computer abstract? And, the answer is clearly no. And, even the Benson realized this and accepted this. The argument that is used by the courts is that the software is not abstract but that it captures an abstract concept. You are not even capturing the argument presented in Benson. Abstract by the courts essentially means it is too broad. In patent terms, what they mean is that it is too broad. The claims take too much space. That is it.

Nor do you understand the word abstract and the uses it has with the SCOTUS and engineering. It can be understood by reading three things: 1) Bilski dissent by Newman, 2) Haliburton, and 3) Benson.

So, seriously, Jesse, I think I understand you. And, you need to read a lot more to understand this. My bet is you don’t know much about hardware. That you don’t know much about law.

Wayne BoreanMay 13, 2013 2:50 am

@Ron

I/m sorry to break the news to the free software crowd, but software is and will always remain patentable, because it has significant commercial value, and therefore worth the investment to protect it. When software was truly free in the early days of computing, there was no compelling reason to patent it. But those days are long gone.

It doesn’t work that way. Read the relevant part of the Constitution. Commercial Value has no impact on patentability, and never has.

@NWPA

Sorry, what did I repeat? I’ve been working on a large project, and skipped a huge pile of comments.

Wayne

jesseMay 13, 2013 3:46 am

@NWPA
“Gene’s point that software is instructions is a great point. You keep saying it is abstract, but, in reality, read Newman’s dissent in Bilski as to what abstract means in engineering. The fact that you are working in software at an abstract level does not mean that it is abstract in patent terms.”

I use the term abstract as languages are abstract, as information is abstract, as ideas are abstract… just as mathematics is abstract.

“Software is abstract for a programmer and then is turned into something that is not abstract. That is the abstract chain that every good engineer was taught to work on in college.”

But decent mathematicians know the difference between abstract and reality. And the computer is a mathematical concept with mathematical rules.

Since you claim software is “something that is not abstract”, please point to some non-abstract software.

“So, the question is are the instructions to the computer abstract? And, the answer is clearly no. And, even the Benson realized this and accepted this. The argument that is used by the courts is that the software is not abstract but that it captures an abstract concept. You are not even capturing the argument presented in Benson. Abstract by the courts essentially means it is too broad. In patent terms, what they mean is that it is too broad. The claims take too much space. That is it.”

Something that “captures an abstract concept” is usually called “language”. Writing is a recording of an abstract concept in a language. And languages are not patentable.

“Nor do you understand the word abstract and the uses it has with the SCOTUS and engineering. It can be understood by reading three things: 1) Bilski dissent by Newman, 2) Haliburton, and 3) Benson.”

Quite, when I read them, they made no sense. Calling an abstract concept not abstract just isn’t logical. It requires definitions to include its own inverse, which makes expressing abstract concepts using the definitions meaningless.

“So, seriously, Jesse, I think I understand you. And, you need to read a lot more to understand this. My bet is you don’t know much about hardware. That you don’t know much about law.”

Hardware I know fairly well, not to design it, but to understand the limitations of it. Software I know a LOT more, having worked with implementing navigation systems (from LORAN-C to GPS, with several proprietary systems in between), and managing a fair number of networked computers and supercomputers.

Law, no – every time a lawyer says something, I have to recount my fingers. Even though US law is supposed to be readable, it no longer uses US English – in fact, it seems as mushy about concepts as the philosophy of religion.

NWPAMay 13, 2013 8:26 am

@Jesse: >I use the term abstract as languages are abstract, as information is abstract, as ideas are abstract… just as >mathematics is abstract.

Then you are not only ignorant of law but of engineering. Program languages are abstract. No question. But, as ANY well trained engineering student knows we are trained to work at a level of abstraction. We then walk up and down the level of abstraction to get work done. Newman provides a great explanation of this in the dissent of Bilski. Or you can take the intro to circuits class at MIT online. I am sure they will explain this to you.

Just because you are working at an abstraction level DOES NOT MEAN what you are doing is abstract. The abstraction is translated to something that is not abstract–the actual instructions.

In law, you are ignorant. Abstraction in patent law means too broad. That what you have claimed is too broad for the courts. It is similar to 112, but probably there is a bit of difference.

Really, Jesse, you cannot engage in these conversation without knowing these things. You may not agree with them, but it is not even possible to have a conversation with you unless you understand what others say.

And, Jesse, I was trained at two of the top 5 engineering schools in this country. Both said the same thing to me over and over. Learn what level of abstraction you are working at and how to walk up and down the abstraction ladder. That is how an engineer gets work done.

Ron HiltonMay 13, 2013 10:05 am

The anti-software patent advocates long ago lost the argument that “software is math.” Those here still disputing that apparently haven’t gotten the memo. Their only hope of success is that the pro-software patent interests will quit fighting the issue in court, and given the economics involved, that’s not going to happen.

AnonMay 13, 2013 10:42 am

Jon,

You do realize that if Google had a patent onthe machine only pagerank that they could exclude others from hardware/software (even hardware/different software) from practicing? – there is no “feature” instead of a ‘bug” for you.

Should I take this as another example of the lack of legal knowledge getting in the way of understanding? jesse has all but admitted his disdain for the legal side, which places his views (being incorrect as they are on the physical side) in the completely ‘abstract’ other-universe of anti-software patent idealogues.

JodiMay 13, 2013 10:46 am

martin snyder:

In #126 you said:

> Arguments about pencil and paper and weather a million monkeys can code a browser are not pertinent.

1) nobody said monkeys – we’re talking humans.

2) A human can perform any calculations a computer can – albeit much slower, less accurate, needs lot more breaks, can’t go on doing same menial tasks for very long, costs more to feed, etc… In other words, humans are simply impractical for real world applications.

3) Humans use computers as a practical tool because they are faster/better/cheaper than any human can ever hope

4) Tools are patentable (everyone seems in agreement over this)

Furthermore, you said:

> why don’t we patent movies, songs, and books? The reason is that those items are very complex and by definition include the contributions of untold other artists in their creations. Software is similar and should enjoy copyright protection rather than patent protection.

1) Movies, songs, books aren’t functional

2) Copyrights are sufficient protection for movies, songs, books but not for software. Remember, we need a way to encourage software innovations – not the theft of.

jesseMay 13, 2013 11:02 am

@NWPA

“@Jesse: >I use the term abstract as languages are abstract, as information is abstract, as ideas are abstract… just as >mathematics is abstract.

Then you are not only ignorant of law but of engineering. Program languages are abstract. No question. But, as ANY well trained engineering student knows we are trained to work at a level of abstraction. We then walk up and down the level of abstraction to get work done. Newman provides a great explanation of this in the dissent of Bilski. Or you can take the intro to circuits class at MIT online. I am sure they will explain this to you.

Just because you are working at an abstraction level DOES NOT MEAN what you are doing is abstract. The abstraction is translated to something that is not abstract–the actual instructions.”

You need to take a review. Especially of the foundations of computer science.

The “actual instructions” ARE a language. The “translated” is from one abstract language supporting a complex syntax into another simplified abstract language that can be interpreted by a processor.

The only time you translate the abstract into “actual” (in engineering) is when you translate the abstract (such as a bridge design, or circuit design) into the actual (a bridge that be used for transportation, or the physical circuit using currents and voltage).

Translating one symbolic language into another does not change it into an “actual thing”. It is still a language.

In law, you are ignorant. Abstraction in patent law means too broad. That what you have claimed is too broad for the courts. It is similar to 112, but probably there is a bit of difference.

“Really, Jesse, you cannot engage in these conversation without knowing these things. You may not agree with them, but it is not even possible to have a conversation with you unless you understand what others say.

And, Jesse, I was trained at two of the top 5 engineering schools in this country. Both said the same thing to me over and over. Learn what level of abstraction you are working at and how to walk up and down the abstraction ladder. That is how an engineer gets work done.”

Note the difference between Engineering and Mathematics. Engineers specifically work to convert abstract designs into physical reality. Mathematicians do not, they work to validate the logical consistency mathematics, and to identify when it is not valid. They work strictly with symbolic information in a logic system. Programmers translate abstract problem statements into a mathematical language suitable to the problem. That mathematical language can then (ideally) be translated into any of a collection of different, simplified languages suitable for each processor the problem is to analyzed by. There is nothing “actual” about the instructions for a processor, they are just symbolic numbers, used to represent the symbolic actions of a mathematical processor.

The failure of communication here is to not recognize that translation of abstract symbols into other abstract symbols is still abstract. It happens a lot, frequently by those not trained in mathematics. It happens to programmers too – they forget that the binary numbers the compiler/linker generated is just that – a sequence of numbers, with no intrinsic meaning except to the processor that will read those numbers (or the programmer attempting to track an error…:). They are just symbols in a language.

One thing I have noticed is that the more abstract the source language, the less likely it is that the same programmer will work with the output of a compiler. And that allows them to develop the habit of ignoring it – which leads to forgetting it. Modern development tools have only increased this tendency. I have worked with compilers, building them, debugging them, and correcting the output. Which is why this is overly familiar, and grates on my nerves when it is treated incorrectly.

JodiMay 13, 2013 11:02 am

Jesse,

In #137 on topic of copyrights and clean room development, you said

> The mathematics used in the second implementation do not necessarily match the original.

Your smoke&mirrors is not fooling anyone. What matters is whether a competitor can copy the underlying technological innovation. With copyrights, they can.

jesseMay 13, 2013 11:28 am

@Jodi

“1) Movies, songs, books aren’t functional”

Yes they are – most movies at this time are nothing but symbolic sequences sent to a translator to be converted from one symbolic representation, into another symbolic representation. The result the symbolic representation is a sequence of numbers then converted to light patterns. In the same way a portion of that sequence of numbers is used for directing a special purpose processor to generate another sequence of symbols converted into sound waves. The device that does all this computation is called a DVD player, or an MP3 player.

As for songs being functional – that goes back to the player piano (actually, much farther than that – all the way back to music boxes). The player piano transformed symbols recorded on a roll of paper into sound that could be interpreted by the mind of a listener.

As for books – That depends on the media. Printed books are read by the mind, and the abstract symbols written on paper are converted to a series of symbols by the readers mind. The active participant in this is the readers mind.

As for electronic books – they are symbols transformed into other symbols which are then transformed into patterns of light; after that it is the same as for printed books. Note that the input symbols are no different in concept than the symbols for any other processing. There are three active participants in this – one being the processor translating the recorded symbols into symbols that can be translated into symbols that are transformed into light patterns (and that pattern changes depending on the size of the display – hence it is an active translation rather than passive). The second is the transformation of symbols into a light pattern. The third is the mind of the reader.

Note that many of the earlier (before computers) devices only handled one transformation – from the symbolic into physical reality. Currently, it involves multiple translation before it is transformed into physical reality. The advantage is that it becomes easy (cheap) to perform the translations, and it allows for easily substituted transformations to reality.

jesseMay 13, 2013 11:35 am

@Jodi

> The mathematics used in the second implementation do not necessarily match the original.

Your smoke&mirrors is not fooling anyone. What matters is whether a competitor can copy the underlying technological innovation. With copyrights, they can.”

Just as anyone can. Patents don’t prevent it. In fact, with patents you are SUPPOSED to tell anyone “skilled in the art” how. I have yet to see a software patent issued since about 1990 do that though.

The advantage of copyrights over patents is that it will last for 99 years + life of author.

przemoliMay 13, 2013 11:36 am

@Jodi

“Your smoke&mirrors is not fooling anyone. What matters is whether a competitor can copy the underlying technological innovation. With copyrights, they can.”

With copyrights they can not use your code. So they must find their own solution. Idea will be copied, solution wont.

Both programs compile and provide the same functionality. Assembly language code generally has a one-to-one correspondence between the language and the architecture’s machine code instructions. So proof that software and hardware are interchangeable!

Both programs are not “abstract” but very real and very clearly defined – indeed x86 computers process both equivalently!

Both were created not discovered – but yet the Assembly code you call patentable because a “product of matter” – and the C code you call “abstract thought” and “mathematics” and so not patentable. Absurd!!!

Furthermore, a COMPUTER CANNOT THINK – it can only FOLLOW EXPLICIT INSTRUCTIONS – and “abstract ideas” are NOT explicit instructions – therefore a computer cannot process abstract thought. But yet you claim that software code is abstract!!! So what happened, did the computer somehow learn to think and process the “abstract” C code above?

Hand wave and introduce unnecessary complexities all you want – but hardware and software are interchangeable and neither are abstract. So either both are patentable or neither is.

AnonMay 13, 2013 12:18 pm

“Furthermore, a COMPUTER CANNOT THINK ”

There is a word for that…

As my namesake would say: “ANTHROPOMORPHICATION“

jesseMay 13, 2013 12:40 pm

@Jodi
“Both programs compile and provide the same functionality. Assembly language code generally has a one-to-one correspondence between the language and the architecture’s machine code instructions. So proof that software and hardware are interchangeable!”

No. you are missing a step first. The machine code you refer to is a series of abstract numbers… That series of numbers is interpreted by the processor (about half of the processor is actually hardware, the other half is microcode, and thus is actually software). And note, ever since the Pentium, the Intel CPU is a two level cpu – the X86 instructions are first translated into a series of RISC instructions – this is because it is MUCH easier to reorder RISC instructions in a pipeline than it is the X86 instructions. In addition to this, there is a fair amount of microcode stored inside the processor. Current Intel CPUs even allow you to load alternate microcode to fix errors in the CPU.

To transform the abstract sequence of numbers into hardware (as a near equivalence) you have to convert the machine code into transistors, resistors, wires, capacitors, and voltage/current levels combined with additional hardware to translate the CPUs internal actions so that you get a functional whole.

Lets start with a basic question: What is a 0 or 1 symbol?

The answer is not a simple “presence of voltage” or “absence of voltage”. A “0” might be anything from -.01, to 0.1 (the value could also be a 1, depending on the type of logic being used…). A “1” could be any voltage between 1.1 and 0.9. This range allows for an overvoltage (where if you pass 1.1 you would possibly vaporize a transistor, and the same could happen if it has too much negative voltage). You might even think that a 0 would be from 0 to .5, and a 1 would be from .5 and 1… but that doesn’t work due to the physical nature of transistors. No two transistors are exactly alike, so identifying a 0/1 condition when you are close to the middle point is an error – sometimes you get a 1 sometimes you get a 0. Second, a transistor cannot switch from maximum to minimum (or back) instantly – they are not quantum values, so you have to have a boundary between them. This creates an “indeterminate state” that must also be handled. Frequently (not always) this is handled by clocks, or by just waiting long enough for a transistor to get to its “final state”… or by a “set/reset” signal to force transistors into a valid state.

Once you get the digital electronics, you then get to translate the symbolic sequence of numbers that represent the software into the digital electronics… And that is NOT easy to do. It is easier to first translate that series of numbers into the boolean expressions that represent those numbers. Now you can take some automated tools that take the boolean expressions and generate wiring diagrams for the digitial electronic parts. The reason for the two step here (most tools should/will do this for you) is that the boolean algebra is easier to optimize and minimize the number of digital elements required.

One hint you get about the “machine code” is that it is a “code”. Codes are used for translation, they are abstract symbols. In this case the symbols are binary numbers. The translator of those numbers is the processor (for intel, an aggregate of hardware and microcode).

Thus the “machine code” is not hardware.

Hardware is a composition of matter – and is patentable.

Software is a sequence of mathematical symbols (code if you insist)- and thus abstract, and not patentable.

jesseMay 13, 2013 1:42 pm

@Jodi (continued)
“Both programs are not “abstract” but very real and very clearly defined – indeed x86 computers process both equivalently!”

Both are abstract sequences of numbers, just a different sequence.

“Both were created not discovered – but yet the Assembly code you call patentable because a “product of matter” – and the C code you call “abstract thought” and “mathematics” and so not patentable. Absurd!!!”

I do not say assembly code is patentable. It is a sequence of symbols. And the C code is the written expression of an abstract mathematical thought. Since both written expressions are not patentable and languages are not patentable they are not patentable.

“Furthermore, a COMPUTER CANNOT THINK – it can only FOLLOW EXPLICIT INSTRUCTIONS – and “abstract ideas” are NOT explicit instructions – therefore a computer cannot process abstract thought. But yet you claim that software code is abstract!!! So what happened, did the computer somehow learn to think and process the “abstract” C code above?”

“Computers cannot think, YET” would be proper. No a computer can’t follow abstract ideas yet, but it can follow abstract symbols. That was discovered in the 1930s. That is what a processor was made to do.

The computer was manufactured to translate the binary symbols into other binary symbols. The “somehow” is built into the compiler (that translates a sequence of symbols into a new sequence of symbols). Note that all of this is dealing with nothing but abstracts.

“Hand wave and introduce unnecessary complexities all you want – but hardware and software are interchangeable and neither are abstract. So either both are patentable or neither is.”

The complexity is the problem. It is complex. That complexity is being covered over by multiple layers of symbol manipulation. Symbol manipulation, and sequences of symbols are not patentable.

In the early computers, programming was done by manually writing numbers on paper, then flipping switches/running wires to set the machine to what the numbers were, then pressing an execute button to start the processing. flipping switches was time consuming (and very expensive). So instead, they made a “readin” (aka boot/IPL) button that would initiate a peripheral to translate a card (or paper tape) with holes in it into a sequence of numbers in memory. This was much faster.

Very early it was decided to use words for the operations – it was easy enough to replace them with numbers, and it was a lot easier to remember the operations. Someone wrote a program to convert the words into numbers (and punch a new deck of cards) so that people wouldn’t make a mistake. This was the first, primitive assembler. Note – it is doing nothing but substituting one symbol for another (a number). The next step was to allow for words to designate memory locations – more symbol substitutions.

Things went faster – new languages were created, translators written, still just translating from symbols into other symbols that the processor was wired to interpret.

By the current time, I believe we are using about 5 layers of abstraction. Binary machine code, assembler, high level compiler, application generators, and interpreters (some of which include assemblers/just in time compilers…). Not necessarily all levels at the same time. And I’m not sure if I should include a level for dynamic/runtime linking, but that is because it seems to fit between the binary machine code and high level compiler, but it isn’t exactly an assembler (it can/does rewrite the symbols for memory locations though).

It is easy to forget where the hardware stops.

JodiMay 13, 2013 1:49 pm

Jesse,

Then add the microcode if that makes you happy. So now we’ve got C code that maps to assembly code that maps to microcode that maps to hardware. None of the software is abstract because otherwise a computer wouldn’t be able to process it (remember computers can’t think).

NWPAMay 13, 2013 1:52 pm

@Jesse: >>What is patentable is the device performing the manipulation.

Exactly! And the device performing the manipulations is a method (!!), the software.

The other stuff you wrote seems to ignore the abstraction laddder and the fact that a patent only needs to enable anyone skilled in the art to practice the invention. Pseudo code is fine as it has a clear path to the machine instructions.

Oddly, Jesse, I think you have looped around and taken our side. You just haven’t realized it yet.

jesseMay 13, 2013 3:04 pm

@Jodi
“Then add the microcode if that makes you happy. So now we’ve got C code that maps to assembly code that maps to microcode that maps to hardware. None of the software is abstract because otherwise a computer wouldn’t be able to process it (remember computers can’t think).”

All of the software is abstract. The processor hardware is wired to a specific vocabulary, and actions taken as specified. It doesn’t have to think, just perform as the hardware is made.

You don’t seem to know how processors work. And I haven’t been able to find a basic introduction to how the instruction cycle is implemented; it is a bit complex, and it helps a lot to have the diagrams. Most of the ones I find that appear to be of good source are behind paywalls, or are part of a book review.

I may find something yet, but not today.

jesseMay 13, 2013 3:06 pm

@NWPA

“Exactly! And the device performing the manipulations is a method (!!), the software.”

No, the “software method” does nothing. A PROCESSOR does things, and that PROCESSOR may be instructed to follow a software method.

That STILL does not make the software patentable.

AnonMay 13, 2013 3:34 pm

jesse,

Have you looked into what I suggested regarding the exceptions to the printed matter doctrine?

Have you realized that software is not thinking, that you must put it into a tangible form for it to be software, and that such form is quite enough to meet the same patent eligiblity requirements as the passive component patent examples I gave above?

Will you engage me in an honest conversation on these points?

jesseMay 13, 2013 5:06 pm

@ANON

“Have you looked into what I suggested regarding the exceptions to the printed matter doctrine?”

And that doesn’t seem to apply to the nonpatentability of languages and mathematics, or even whether it applies to mathematics at all.

“Have you realized that software is not thinking, that you must put it into a tangible form for it to be software, and that such form is quite enough to meet the same patent eligiblity requirements as the passive component patent examples I gave above?”

I never said it was thinking. I said software is the written expressions of a mathematical concept. Programmers think, then write the software which is a written mathematical language for communication. It is even possible for that software to be passed to a theorem solver to try for a proof of correctness. So far that only works for a relatively trivial level of software complexity though.

Such is the nature of communication – the software is passed to the compiler, that identifies syntax errors, and in some cases, semantic errors or oversights. The result is a new expression of mathematics that can be communicated with a CPU for processing.

Languages are not patentable. Abstract symbols are not patentable. Mathematics as a field is specifically excluded from patents.

Rivets, and bullets are a construct of matter – and patentable.
So are brooms, shovels, screws, nuts and bolts. All are constructs of matter.

Software is just a construct of abstract symbols.

JodiMay 13, 2013 5:15 pm

Jesse,

In #163 you say:

> All of the software is abstract. The processor hardware is wired to a specific vocabulary, and actions taken as specified. It doesn’t have to think, just perform as the hardware is made.

Which is it – software is abstract VS computers can’t think in abstract? Software consists of instructions that a computer reliably, predictably, and accurately carries out. But computers can’t think and so cannot process something abstract. This isn’t hard stuff here – form an opinion and stop embarrassing yourself by flopping around.

Here, I’ll make your mind up for you. Since you say “it doesn’t have to think, just perform” – so you admit that the computer carries out instructions – therefore you admit software is not abstract. Hooray – congratulations – you did it!!!

JodiMay 13, 2013 5:19 pm

Jesse,

Better edit and fix #166 because this is one of your dorkier things you said:

> Languages are not patentable. Abstract symbols are not patentable. Mathematics as a field is specifically excluded from patents.

> A bullet is a product of matter, and thus patentable, though I believe the patent ran out a LONG time ago.

It’s not “the patent”!!! Improvements to bullets can go on forever. There was never one patent but likely hundreds all touching different aspects and improvements.

Better start reading up on patents a bit.

jesseMay 13, 2013 7:02 pm

@Jodi
“Which is it – software is abstract VS computers can’t think in abstract? Software consists of instructions that a computer reliably, predictably, and accurately carries out. But computers can’t think and so cannot process something abstract. This isn’t hard stuff here – form an opinion and stop embarrassing yourself by flopping around.”

The processor manipulates symbols. To the processor the symbols mean nothing. They are just abstract numbers. The electronic circuits receive the signals (voltage levels) that have been assigned to the number. The processor then uses digitial logic (and/nand gates) to identify a specific pattern associated with that set of voltage signals. That identification (done by a collection of and/nand gates called a decoder) causes a signal to be sent along a wire to an ALU (which is another collection of digital circuits) that cause one specific subset of that collection to activate. The resulting signals are then routed to the destination (via another collection of and/nand gates). When the action is complete, based on clock timing (another collection of and/nand gates), the instruction index (another collection of and/nand gates) goes to its next designed state. When that state is reached, the signals in the instruction index is used to signal a memory unit (a large number of and/nand gates) to retrieve the next instruction (a set of voltage levels)…

Nowhere is there any need for the circuit to think.

“Here, I’ll make your mind up for you. Since you say “it doesn’t have to think, just perform” – so you admit that the computer carries out instructions – therefore you admit software is not abstract. Hooray – congratulations – you did it!!!”

No I did not. I said you didn’t know how a CPU actually works, and I meant it.

jesseMay 13, 2013 7:07 pm

@Jodi

“Better edit and fix #166 because this is one of your dorkier things you said:

> Languages are not patentable. Abstract symbols are not patentable. Mathematics as a field is specifically excluded from patents.

Nobody is patenting a language! Whatever gave you that crazy notion?”

You are patenting the language of mathematics by patenting software, you are removing expressions from the language. Due to the very restrictive set of expressions in that language, you bar the use of the language.

If the same thing were done to English, you would be barred from all communication – as the use of “methods” would be denied.

jesse, your answer at 166 shows that you still do not understand the law. All I hear is mantra without reason or understanding. Not even an attempt at understanding, really.

Further, you keep on equating math AS a language with somehow claiming the language as a whole. Your logic is absymal, which I would imagine to be a devastating liability for a programmer.

Ron HiltonMay 13, 2013 10:27 pm

If hardware is patent eligible but software is not, what about hardware emulated by software? IBM thought so, because they sued the company that I founded (Platform Solutions Inc.) for patent infringement based upon the mainframe emulator that we developed. Where do you draw the line between computer “hardware” and “software”? You can’t. What about a hardware design in RTL (Register Transfer Language)? Is that hardware or software? This whole thread about software not being patent-eligible is so bugus, I don’t even know why I’m wasting time on it.

martin snyderMay 13, 2013 11:07 pm

A training film has utility, and is not patentable.

NWPAMay 14, 2013 2:31 am

@Mike May: I didn’t say software was a device.

@Ron Hilton: I agree with you, but then we are starting to lose in courts that is why some of us are wasting time with these ridiculous arguments. The judges are using them now.

@Jesse: Jodi beat the pants off you with her C to assembly code to microcode example. I know what you are thinking Jesse. I was a programmer for years. It feels like talking. It feels like a language to our brains. But, that doesn’t mean it is the same as speech. It isn’t.

NWPAMay 14, 2013 2:31 am

@Jesse: Jodi beat the pants off you with her C to assembly code to microcode example. I know what you are thinking Jesse. I was a programmer for years. It feels like talking. It feels like a language to our brains. But, that doesn’t mean it is the same as speech. It isn’t.

jesseMay 14, 2013 4:35 am

@Ron Hilton
“If hardware is patent eligible but software is not, what about hardware emulated by software? IBM thought so, because they sued the company that I founded (Platform Solutions Inc.) for patent infringement based upon the mainframe emulator that we developed. Where do you draw the line between computer “hardware” and “software”? You can’t. What about a hardware design in RTL (Register Transfer Language)? Is that hardware or software? This whole thread about software not being patent-eligible is so bugus, I don’t even know why I’m wasting time on it.”

As I recall the lawsuit, it was over the license to USE the IBM operating system in an unlicensed manner. Just like Apple sued Psystar over the use of OSX in an unlicensed manner (on non Apple hardware).

RTL is a mathematical language designed to aid in the development of computer specifications. It is not hardware, but is much easier for automatic transformation into designs that can be used to create hardware.

Software emulators are not hardware either. If it were, then you would not need any material thing for a computer to work – and that would be called “Magic”. It is an old problem going all the way back to the stone age, confusion of the symbolic with reality. It still happens – people unfamiliar with the principles of programming see programming as magic. But that is because they don’t understand the fundamental dichotomy between the symbols used and reality.

Software is a mathematical language with many dialects, one for each processor, one for each assembly language, one for each high level programming language,… Each has been shown as mathematically equivalent to the other, as long as the underlying principles meet the Church-Turing thesis – otherwise translators/compilers/interpreters would not work. In fact, there are a few spots deliberately made incompatible (system calls for instance – but some computer languages do have system calls built in).

I draw the line when the language is implemented in physical material. The material implementation is the hardware patented. Not the abstract symbols manipulated by that hardware. I know it is a difficult identification. The physical matter used in the implementation has to include physical effects (atoms and electrons, chemical side effects, …)outside of the emulated mathematics. Being composed of matter, it is obviously not mathematics, which is purely abstract.

What appears to be overlooked is that the composition of matter is (within rather strict physical limits) EMULATING mathematics. Go outside those limits and it breaks, either by melting due to overheating, or just no longer getting the correct results from its operations (values suddenly change, a mathematical equivalence fails… such as “A = A”).

A few programmers even use this to verify that the hardware is actually working (BIOS boots can do a memory test – such a test is looking for an A != A occurrence for every memory location).

The keyword for hardware is EMULATION. Hardware emulates the operations of mathematics. If that emulation is faithful to the axioms of the mathematics, then other mathematical expressions can the supplied to the emulation with the expectation that the result of the evaluation will also meet the requirements of mathematics. When it doesn’t, you have two possible issues 1) the expression was incorrect 2) you have a hardware failure. Engineers are fairly conservative (except when pushing boundaries), so it is rather more likely to be an error in the expression (a bug). When people overclock the hardware, they are pushing the physical limits of the hardware… and sometimes the expressions appear incorrect (for example, showing up with parity errors, or segmentation faults,…), but it is a failure of the hardware instead.

When people say “Software and hardware are interchangeable” what do they really saying? The mathematical expressions interpreted by hardware is the same as the software. That part is true, but it is not complete. The inverse is not true. You cannot use software to emulate hardware … without using hardware to first emulate the mathematics that software is based on.

jesseMay 14, 2013 4:42 am

@NWPA

“@Jesse: Jodi beat the pants off you with her C to assembly code to microcode example. I know what you are thinking Jesse. I was a programmer for years. It feels like talking. It feels like a language to our brains. But, that doesn’t mean it is the same as speech. It isn’t.”

Mathematicians in the field disagree with you.

AnonMay 14, 2013 7:39 am

jesse,

When you state “I draw the line when the language is implemented in physical material. The material implementation is the hardware patented”

You come close, but miss at the critical point. The implementation of the language is the creation of the software itself. When the software leaves the mere possibility stage of ‘thinking about software’ and is implemented in the writing, it becomes a machine component – every bit as real as the rivets, tires and bullets of the physical examples provided.

Writing uses language – it is not the language. All languages have rules for use: your dwelling in the world of mathematics has blinded you to the world of law. The shadows on the wall of the cave are caused by real things. The shadow is no less real and no more abstract merely because the shadow is not the real thing itself.

Is there a reason you do not acknowledge my points about copyright (fixed in tangible media) and patents (the exception to the printed matter doctrine)? These are not opinions with which you can disagree. You may not like them, but that is a completely different matter.

Do you realize that your argument of software math fails upon its own weight? Just as passionate as you are about the language of math, there are many of those with whom you argue with here that are passionate about BOTH technology and law. Unbridled passion though, is the surest way to defeat reason and logic.

If you do not recognize (and control) your disdain for law, you will never understand (or correctly apply) that law. You cannot hold such disdain for the law as you do, ignore it as you do, and then expect anyone here to recognize as legitimate what you merely want the law to be. It is neither reasonable, nor logical. It only lessens your credibility.

AnonMay 14, 2013 7:58 am

Mr. Snyder,

Do you understand the legal significance of the term “the useful arts?”

I do not wish to be snide with you, but you are not at liberty to redefine terms that have specific legal meanings. There is a good point in your post of 176**, but that point is lost because you refuse to understand the legal terrain. You attempt a software book paradigm that has simply failed to hold, without even trying to understand why it has failed to hold. You too ignore my posts explaining that software has different attributes that garner different protections from the different vehicles of intellectual property protection. This fundamental lack of understanding of the legal vehicles of IP protection destroy any credibility that you have when you want to express your ideas and desired state of law. It is obvious that you speak of things you do not understand – and having a passing awareness simply does not suffice. This is not to say that you need to be a lawyer to understand, but you cannot come to the table with your mind full of what you want and expect to learn anything new (and anything real) about how the law actually is.

**without attempting to confuse the thread subject, the good point you raise is one of utility. Utility is indeed a requirement of patent-eligible subject matter, but if met, is not a sufficient and conclusive proof of patent-eligible subject matter. Business methods are a prime example of something along this edge. While quite in fact business method patents have a long history and have been granted throughout the history of the US patent system, the general recognition that business methods are indeed patent eligible subject matter remains a contested topic. But much like software, it is contested for the wrong reasons, and it is contested with advocates who close their eyes to reason, who strive for a desired end state without understanding the terrain. The likes of Deming and his predecessors have solidified business methods as a useful art in that term’s legal meaning.

Wayne BoreanMay 14, 2013 8:46 am

Just curious, but am I the only person who programs in HTML here? Most of the comments are virtually unreadable because people are either to lazy or to unskilled to use “BOOCKQUOTE”.

Wayne

AnonMay 14, 2013 9:48 am

“either to lazy or to unskilled to use “BOOCKQUOTE””

Wayne, I find this comment of yours to symbolize your typical post: way too self-centered and off the mark.

Ron HiltonMay 14, 2013 9:52 am

IBM v. PSI was about several forms of IP, including software licensing, trade secrets, and patents. Regarding patents, IBM specifically claimed that a software emulator could infringe a hardware patent, and we agreed. That was never in dispute as far as we were concerned. There were many other legal flaws in IBM’s case but that wasn’t one of them. They finally settled the case by acquring PSI, including it’s own “software” patent portfolio.

@Jesse – you seem to be fixated on “composition of matter” which is only one of the statutory patentable categories in USC 101. Another is a “method” which certainly includes software algorithms and business methods. But until now the USPTO and courts have required language tying the method to a physical medium or device, which is precisely what you seem to be arguing in making your superficial distinction between hardware and software methods. And that is the argument that at least some fo the FC judges just rejected. So your proposed “bright line” is in jeopardy too. I predict that eventually the courts will come around to realize that a method is a method is a method, and we will look back years from now and wonder what all the fuss was about software patentability. The pro-software commercial interest will keep hammering away at it in court until that inevitable logic gets hammered home. When neither a big incumbent (IBM) nor a small ulpstart (PSI) wanted to through software patents under the bus, you know they are here to stay.

jesseMay 14, 2013 10:29 am

@Anon

“You come close, but miss at the critical point. The implementation of the language is the creation of the software itself. When the software leaves the mere possibility stage of ‘thinking about software’ and is implemented in the writing, it becomes a machine component – every bit as real as the rivets, tires and bullets of the physical examples provided.”

No it isn’t. As you say, “is in the writing”. Writing is a recorded language. It is independent of the machine as that writing can be read by a person, usually done for debugging. Sometimes it is read for analyzing the translation… and even sometimes for learning. Even its intended target, a machine.

“Writing uses language – it is not the language. All languages have rules for use: your dwelling in the world of mathematics has blinded you to the world of law. The shadows on the wall of the cave are caused by real things. The shadow is no less real and no more abstract merely because the shadow is not the real thing itself.”

Touch a shadow… You will find that the shadow is only the absence of photons.

Touch software. You find you are touching a disk, or a tape, or a flash device. Just as a novel is purely abstract. Touch a book. You find you are touching ink on paper. Not a novel.

“Is there a reason you do not acknowledge my points about copyright (fixed in tangible media) and patents (the exception to the printed matter doctrine)? These are not opinions with which you can disagree. You may not like them, but that is a completely different matter.”

Of course there is. Mathematics as a field is specifically excluded from the field of patents. Abstract ideas are also specifically excluded.

“Do you realize that your argument of software math fails upon its own weight? Just as passionate as you are about the language of math, there are many of those with whom you argue with here that are passionate about BOTH technology and law. Unbridled passion though, is the surest way to defeat reason and logic.”

Software, as an abstract, has no mass, therefore it has no weight.

There are also many of those that see that if the law were properly enforced would lose their paychecks.

“If you do not recognize (and control) your disdain for law, you will never understand (or correctly apply) that law. You cannot hold such disdain for the law as you do, ignore it as you do, and then expect anyone here to recognize as legitimate what you merely want the law to be. It is neither reasonable, nor logical. It only lessens your credibility.”

When law becomes illogical, it deserves disdain.

What I actually see is law being made in ignorance of facts. I read lawyers making illogical arguments and presenting fantasy in place of facts. I read statements that are obviously lies in the face of truth. I read distorted truth, and half truths presented as truth. And getting away with it only because of ignorance of the truth.

That is what I disdain. Not law.

jesseMay 14, 2013 10:36 am

@Wayne

“Just curious, but am I the only person who programs in HTML here? Most of the comments are virtually unreadable because people are either to lazy or to unskilled to use “BOOCKQUOTE”.”

No, but there is no preview, and no guidelines on what is the acceptable HTML subset used.

jesseMay 14, 2013 11:00 am

@Jesse – you seem to be fixated on “composition of matter” which is only one of the statutory patentable categories in USC 101. Another is a “method” which certainly includes software algorithms and business methods. But until now the USPTO and courts have required language tying the method to a physical medium or device, which is precisely what you seem to be arguing in making your superficial distinction between hardware and software methods. And that is the argument that at least some fo the FC judges just rejected. So your proposed “bright line” is in jeopardy too.”

And that is the argument that at least some of the FC judges accepted. It also seems to be the way the Supreme Court is leaning as well.

“I predict that eventually the courts will come around to realize that a method is a method is a method, and we will look back years from now and wonder what all the fuss was about software patentability. The pro-software commercial interest will keep hammering away at it in court until that inevitable logic gets hammered home.”

If it ever happens, the US will be well on its way to being a third world country. People have already left the US to do engineering. Most software development is already done outside the US. And if you think the US has a chance against China or India in intellectual property, you are dreaming.

“When neither a big incumbent (IBM) nor a small ulpstart (PSI) wanted to through software patents under the bus, you know they are here to stay.”

In an environment where the patents are assumed to be valid, sure. I have read that to get a single patent invalidated, no matter how stupid, can cost $5 million or more. Far cheaper to just not do it. Especially for a a small upstart company that would be put out of business if it tried.

And mentioning stupid patents brings to mind US 6368227. A method patent… Very useful to show how bad the patent situation can be.

AnonMay 14, 2013 12:13 pm

jesse,

Your post at 186 is nonsense. Is this on purpose?

What points are you trying to make with paragraphs 2 and 3? Other than a flat denial of what I stated (which, again, is not up to you), I see NO reasoning or application of law. You present no logic.

“Touch a shadow” – quite misses the point. The shadow is very much still real and manifests itself in a number of ways. I also see the Platonic reference is lost on you. Don’t worry about that – that was more for my self amusement and I really did not expect you to grasp the nuance of that reference.

Your seventh paragraph is not responsive to my post. At all. It is merely you repeating a gibberish mantra.

Your paragraphs 9 and 10, likewise obtuse and non-responsive. I don’t mind if you want to inject some humor, but please, don’t pretend that you are actually addressing the points I am presenting to you in any sense of reason or intelligence.

Your paragraph 12 again is non-responsive and circular. You feel disdain and therefore the law deserves disdain – all the while you show no understanding of what you are feeling disdain for. The absence of logic is breathtaking. You should be appalled given your professed occupation.

Your paragraphs 13 and 14 are argumentive without substance. Your grasp of facts has been as absymal as your grasp of law. As I posted – you are not inhabiting this universe.

Take some time, compose yourself, learn what you are trying to talk about and then come back for an adult conversation. As it is now, every post you make just digs you deeper into the “credibility gap” you have created for yourself. As an ambassador for your beliefs, you should stop and assess the damage you are doing.

And please, don’t compound your show of ignorance with any discussion of world economic factors. You are approaching a topic directly in my backyard, and I can tell you immediately that you have no clue whatsoever as to the veracity of what you are spouting.

jipeMay 14, 2013 12:53 pm

@Gene

I came here following a link from Groklaw and read quite a few of the postings here. Mainly the discussions on the differences between maths and methods. Wanting to put the reasoning on a more concrete level I came up with the Fibonacci numbers. I think most people would say that the Fibonacci numbers are a part of mathematics and I don’t think it would be very easy to patent them now.

My question is, suppose these numbers would have been unknown right now and a programmer would “invent” them, perhaps wanting to approximate the “golden spiral”, would they then be considered to be a method instead of mathematics? If so I guess they could still be described by mathematics but if the programmer had patented the “method” I would not be freely able to use them in other programs?
If that would be the case then it looks to me that it is the order of discovery and by what profession that would label these numbers as mathematics or as a method. Such a blurry distinction doesn’t feel very comforting.

English isn’t my native language so apologies for any mistakes.

Paul JohnsonMay 14, 2013 1:15 pm

At last we seem to be coming down to a more fundamental disagreement: can a series of instructions be an abstract idea? NWPA asserts that instructions precise enough to be followed by a machine are not abstract ideas. Jesse and I on the other hand assert that a sequence of instructions can be both precise and abstract.

“In Benson the claimed invention was a mathematical process for converting binary-coded decimal numerals into pure binary numbers. The Court explained that a mathematical formula unlimited to a specific use was simply an abstract idea of the nature of “fundamental truths,” “phenomena of nature,” and “abstract intellectual concepts”

“…[in Flook] as in Benson, the claim was essentially for the mathematical formula”

Note that in Benson the court explicitly held that a “mathematical process” was equivalent to a mathematical formula, and as such was an abstract idea.

In Diehr the invention was judged patentable subject matter, but only because of the non-abstract inventive step of continuously measuring the temperature.

Hence it seems that NPWA’s claim that a process is necessarily not abstract is contrary to Supreme Court judgements. Therefore it is possible for a process to be an “abstract idea”.

Paul JohnsonMay 14, 2013 1:22 pm

@Anon and @Gene:

I’m saddened that you treat serious attempts at engaging with you on this subject with insults and ridicule. Terms such as “not inhabiting this universe”, “absurd” and other implications that those who disagree with you must be either ignorant or stupid are not helpful. I assume that you are intelligent and learned people with a serious interest in this matter, and while we may disagree I do not doubt either your intellect or your good intentions. I wish that you would do the same.

jesseMay 14, 2013 1:42 pm

@NON
“Touch a shadow” – quite misses the point. The shadow is very much still real and manifests itself in a number of ways. I also see the Platonic reference is lost on you. Don’t worry about that – that was more for my self amusement and I really did not expect you to grasp the nuance of that reference.”

No I didn’t miss it. The shadow on the wall was abstract.

…

And please, don’t compound your show of ignorance with any discussion of world economic factors. You are approaching a topic directly in my backyard, and I can tell you immediately that you have no clue whatsoever as to the veracity of what you are spouting.”

Actually, that wasn’t mine – it was from a BBC/NPR economic analysis.

If you think 300 million people (mostly unable to get through college) can out think 1.34 billion Chinese plus 1.2 billion Indians
(both working VERY hard at getting all the technology) you really are dreaming.

Why do you think 90+% of all computers (including hand held) come from Asia? ALL of the displays. ALL of the memory chips (minus a few made at IBM for experiments). And the latest CPUs? IBM is still tops (since Cray folded), Intel second, and AMD. The new up-and-coming processors? China, India, Europe, Japan, Korea. Are they tops? not yet.

But they will be. Oh, yes, they will be.

Gene QuinnMay 14, 2013 3:45 pm

jipe-

The Fibonacci sequence is not something that could be patented. You cannot invent the Fibonacci sequence. You can discover its existence.

The use of the Fibonacci sequence as the part of a larger method or system would be patentable under the Supreme Court’s decision in Diamond v. Diehr. This is from the Supreme Court decision:

“[A] claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program or digital computer. . . . [A] process is not unpatentable simply because it contains a law of nature or a mathematical algorithm. It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection. As Justice Stone explained four decades ago: “While a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be. . [The equation used in the claimed method] is not patentable in isolation, but when a process for curing rubber is devised which incorporates in it a more efficient solution of the equation, that process is at the very least not barred at the threshold by Section 101.”

This has be described by the Court in terms of preemption. If the patent would preempt all uses of the equation then no patent can be granted. If the patent would not preempt all uses, but only uses in a specific application then the innovation could be patented provided it is new, non-obvious and described adequately.

Math is not patentable, but a computer process or method that incorporates or relies on a mathematical formula or equation certainly can be patented.

So no to the Fibonacci sequence, not to your hypothetical, but yes to a new and non-obvious method/system that incorporates the Fibonacci sequence in a structure or process.

-Gene

AnonMay 14, 2013 3:56 pm

Paul,

My apologies for making you feel that I have slighted any members of the discussion. But until I see some serious attempts at answers to the points I have raised (and a lack of disdain based purely on a desired end result) from jesse, the ad hominem fits. jesse can quite easily return the conversation to a more professional level if he were to come up to that level. I “go there,” as it appears that is the only way to break through to jesse’s understanding. I would love to be wrong in that regard. I have given jesse many chances at this – he has failed to yet respond in any sense of ‘helpful’ manner.

Perhaps if you asked him nicely…

jesseMay 14, 2013 4:27 pm

@Gene

…

So no to the Fibonacci sequence, not to your hypothetical, but yes to a new and non-obvious method/system that incorporates the Fibonacci sequence in a structure or process.”

And this is the illogic.

The Fibonacci sequence was not obvious until after it was discovered. Once discovered, it was analyzed until understood.

And that is true for all mathematics.

jipeMay 14, 2013 4:54 pm

@Gene

Thank you for your clarification on Fibonacci. Still, that sequence to me does not feel like it is a “law of nature”. One could as well say it is a set of numbers defined by a few simple rules. In which way does those simple rules differ from a “method”?

Within the set of natural numbers there are of course an infinite number of subsets. Can one then say that all these infinite subsets are “laws of nature” regardless of if the rules for those sets have been “discovered” or not? This last question is a variant of my previous question but it is still unclear to me what is different with a simple mathematical algorithm and a patentable method. Would it not be conceivable that someone comes up with an ingenious algorithm that selects a subset of the natural numbers and that has strong implications for a particular implementation of something like e g cryptography, compression or similar and that this someone wants to patent this algorithm? Has it perhaps already been done but in slightly more complicated variants (compression)?

NWPAMay 14, 2013 5:08 pm

>Hence it seems that NPWA’s claim that a process is necessarily not abstract is contrary to Supreme Court >judgements. Therefore it is possible for a process to be an “abstract idea”.

@Paul: Benson’s holding was that since the method captured all uses of the mathematical formula both on and off the computer that it preempted it and thus was “abstract.” So, abstract here means too broad.

I don’t agree with this holding, but no only that, we have to make sure we are talking about the same definition of abstract.

AnonMay 14, 2013 5:17 pm

“No I didn’t miss it. The shadow on the wall was abstract.”

Actually, you did miss it. The shadow on the wall was NOT abstract.

The lesson: don’t always drink the kool-aid they offer and learn to think. Sound-byte philosophy will only get you into trouble.

Now, how about the rest of my comments at 181, 189 and elsewhere. Will we see you attempt to give reasoned responses?

Martin SnyderMay 14, 2013 5:27 pm

Anon you are coward in the first part and touchingly naïve in the second part. The Law of which you speak as some fixed and knowable entity is quite malleable to suit the ends of those with the power to wield it . The “Useful Arts” are no more or less than what the Roberts court says they are, and you have yet to explain why software should be protected by both copyright and patent other than because XYZ entrenched power thinks they should.

Paul JohnsonMay 14, 2013 5:43 pm

@NWPA:

So then, it is not so much the formula that is seen as the invention, so much as the application of that formula? But then in Flook a field of use restriction and a “trivial post-solution” addition was not seen as sufficient to make it patentable subject matter. While in Diehr an inventive step apart from the formula was sufficient.

I don’t see how you conclude that in this context “abstract” means “too broad”. Unless there is some legal definition somewhere I would have thought that “abstract” should have its dictionary meaning. The Free Dictionary lists the following meanings for “abstract”:

1. Considered apart from concrete existence: an abstract concept.
2. Not applied or practical; theoretical. See Synonyms at theoretical.
3. Difficult to understand; abstruse: abstract philosophical problems.
4. Thought of or stated without reference to a specific instance: abstract words like truth and justice.
5. Impersonal, as in attitude or views.
6. Having an intellectual and affective artistic content that depends solely on intrinsic form rather than on narrative content or pictorial representation: abstract painting and sculpture.

In the context of “abstract idea” I would have thought meaning 1 would be the most appropriate: considered apart from concrete existence.

The term “concrete existence” suggests physical form. Clearly a new mechanical invention has concrete existence. Does a process for transforming a material, such as the instructions for assembling a chair, have concrete existence? The chair certainly does.

MikeMay 14, 2013 6:12 pm

@Anon:
I don’t care if “the ad hominem fits”, I don’t respect arguments that contain them. Similarly for arguments containing condescension or essentially a lot of adjectives hurled at a target. I tend to assume that if someone has to resort to such tactics, they probably don’t have a logical argument to make.

I don’t speak for jesse, but I agree with him on a number of points, so I think I can safely say that you’re wrong about him in several ways. First, that his disdain for some parts of the law is based on a desired result. I think his disdain is reserved for nonsense. Is there a reason we should respect nonsense? Second, that insults are necessary to “break through to him”. I don’t think that’s working, and I think that if you really want to “break through to him”, you should think less in terms of breaking and more in terms of mutual understanding. Lastly, that you have “given him several chances” and that he has “failed to respond in a helpful manner”. I don’t see it. I am not sure what “chances” you are talking about, or what you would consider “helpful” (other than caving in and agreeing with you).

MikeMay 14, 2013 6:28 pm

@Anon:
“Actually, you did miss it. The shadow on the wall was NOT abstract.”
Are you going to give us your reasoning behind this statement? If you’re going to complain about a lack of reasoned responses, it would be a good idea to provide them yourself.

Do you agree with NWPA’s definition of abstract as too broad? If not, do you have a definition that is not the ordinary definition of abstract?

@NWPA:
“Benson’s holding was that since the method captured all uses of the mathematical formula both on and off the computer that it preempted it and thus was “abstract.” So, abstract here means too broad.”
That doesn’t sound like any definition of abstract that I’ve ever heard, and I can’t see how you reach that conclusion.

JodiMay 14, 2013 7:19 pm

Martin Snyder, you said:

you have yet to explain why software should be protected by both copyright and patent other than because XYZ entrenched power thinks they should.

The reasons have already been given – not just here but elsewhere, but once again:

Copyrights only protect individual lines of software code but affords no safeguard to the inventive ideas underlying that code. Thus, by reverse-engineering software without copying its code directly, or merely by interpolating fairly minor changes into the code itself, a copycat could use and sell a new software product with relative impunity under copyright law.

JodiMay 14, 2013 7:21 pm

Jesse said:

If you think 300 million people (mostly unable to get through college) can out think 1.34 billion Chinese plus 1.2 billion Indians
(both working VERY hard at getting all the technology) you really are dreaming.

Why do you think 90+% of all computers (including hand held) come from Asia? ALL of the displays. ALL of the memory chips (minus a few made at IBM for experiments). And the latest CPUs? IBM is still tops (since Cray folded), Intel second, and AMD. The new up-and-coming processors? China, India, Europe, Japan, Korea. Are they tops? not yet.

But they will be. Oh, yes, they will be.

You are right that jobs related to the technologies you site are largely gone and not likely coming back. The future are not those jobs but new ones – higher up the food chain. Innovation of new products or improvements to existing products. Really this is nothing that new – we have been moving away from manufacturing for a long time – recall that just several decades ago the U.S. was the worlds largest textile industry. Thanks to our system in place, we have the ability not only “out think” them but also prosper. One of main purposes of the patent system is to BLOCK COPYING in order to incentivize CREATING NEW.

Of course, the fallacy being peddled is that a patent blocks innovation. Patents do not block innovation, they block copying. By preventing copying (i.e., infringement) the existence of a patent makes it necessary for companies to engineer around patented technologies, which pushes the envelope of innovation. Throughout history whenever a patent or patent portfolio has been claimed to be blocking a careful consideration of the facts shows that industry wanted to copy rather than innovate alternative solutions. Lethargy is largely to blame for lack of engineering around, not a patent.

Of course, it is true that patents indirectly block innovation for some companies, but this has nothing to do with a patent grant that is too strong or a dysfunctional patent system. Any particular company that is indirectly blocked by patents finds this to be true for one of two reasons. First, the company itself is not an innovator and can only engage in copying the success of what other, truly creative innovators have done. Second, the company does not actually respect patent rights and doesn’t care to look to see what has been or is being patented by others. If you fail to look to see whether what you do is going to infringe you simply keep blinders on and do whatever you want. Then you wake up and realize that you are doing what someone else has patented. That shouldn’t lead to a temper tantrum that causes one to rail against patents, rather it should lead to self examination relating to why you proceeded so recklessly. Yes, moving forward with conscious disregard for what others are patenting or have patented is hardly appropriate business judgment; it is reckless!

JodiMay 14, 2013 7:38 pm

Jon Shields, in #144 you said:

NWPA (@85): “EVERYONE knows that software/firmware/hardware are all interchangable.”

Just because they are interchangeable doesn’t mean they are the same. I’m really not sure why you think the fact that they are interchangeable is relevant. The fact that they are interchangeable is orthogonal to the question at hand, which is whether software is patentable.

The issue of interchangeability is completely relevant because some are ignorantly arguing that if the same invention is implemented in hardware it CAN be patented, but if implemented in software it CANNOT be invented. Whether it’s combining AND’s and XOR’s together, or IF’s and WHILE loops together – identical effort went into understanding the problem, and then coming up with a solution to the problem. In other words – INVENTING.

Same input, same output, achieve same result, function the same. For all intents and purposes, the Assembly maps to hardware (add another layer of microcode if you wish – same thing).

Hardware and software are interchangeable, plain and simple.

JodiMay 14, 2013 7:47 pm

Paul Johnson, you said:

At last we seem to be coming down to a more fundamental disagreement: can a series of instructions be an abstract idea? NWPA asserts that instructions precise enough to be followed by a machine are not abstract ideas. Jesse and I on the other hand assert that a sequence of instructions can be both precise and abstract.

let’s be clear, we are talking about instructions for a computer. Abstract ideas refer to ideas that are not clearly defined, open to interpretation, not precise. Yet a computer can only process explicit instructions and cannot process vague or open-ended abstract ideas.

Furthermore, software and hardware are interchangeable.

Clearly, software is NOT abstract.

AnonMay 14, 2013 7:59 pm

Coming from the person unwilling to engage in give and take, your labeling of my posts as cowardice is pretty humorous.

As to any type of over emphasis on established law, your Holiday Inn ‘sleep-over’ knowledge is betrayed.

Let me know if you want to talk real law (but you better be prepared to accept that real law).

jesseMay 14, 2013 8:02 pm

@Jodi
…
“You are right that jobs related to the technologies you site are largely gone and not likely coming back. The future are not those jobs but new ones – higher up the food chain. Innovation of new products or improvements to existing products. Really this is nothing that new – we have been moving away from manufacturing for a long time – recall that just several decades ago the U.S. was the worlds largest textile industry. Thanks to our system in place, we have the ability not only “out think” them but also prosper. One of main purposes of the patent system is to BLOCK COPYING in order to incentivize CREATING NEW.”

The first step to creating something new is the understand and learn from what ideas exist.

Unfortunately, patents (especially software patents, and patents on mathematics in general) do not accomplish this. By removing the ability to use, manipulate, change, and reintegrate you also loose the ability to learn.

Other countries are or have already found this out. New Zealand, for instance, is in the process (or has by now) declared software to be explicitly non-patentable.

Such failures have happened before.

In my specific case, while I was an undergraduate, the RSA papers came to my advisor. He showed them to me. I thought they were very interesting, and requested some direction on learning how the mathematics functioned, and how it could be used. I was informed that anything I did would belong to RSA, and I would not be able to publish as anything published would be covered by the patents, and thus, not available for research or publication (publications would not accept such papers because they would be counted as “advertisements” and not research).

The RSA patent totally blocked research and development in the US until it was redone in a country that did not have software patents (Switzerland and Australia). Once that software was developed and published (SSLeay, along with a number of documents on advantages, disadvantages, complications of…) did public key encryption become available for testing in various locations (also without software patents). These areas were Australia, New Zealand, Europe, and Japan. US? nope. I was granted the ability to use it around 1992/93, but only because I could import the software from Switzerland, and use it in a DoD system. No threats of patent infringement was possible. I still couldn’t publish anything though. That wasn’t possible until the patents were only about two months from expiring.

Such patents stifles learning, and prevents advancements. So “higher up the chain” will not exist in the US. The result will be that the US ends up 20 years behind. The patents will still be taken though – by foreign companies perfectly willing to block any such advancements in the US by continuing to block education.

jesseMay 14, 2013 8:13 pm

@ Jodi
“Paul Johnson, you said:

At last we seem to be coming down to a more fundamental disagreement: can a series of instructions be an abstract idea? NWPA asserts that instructions precise enough to be followed by a machine are not abstract ideas. Jesse and I on the other hand assert that a sequence of instructions can be both precise and abstract.

let’s be clear, we are talking about instructions for a computer. Abstract ideas refer to ideas that are not clearly defined, open to interpretation, not precise. Yet a computer can only process explicit instructions and cannot process vague or open-ended abstract ideas.”

That is one of the property of mathematics. It MUST be clearly defined, not open to interpretation, and precise. Otherwise, it is invalid.

What ever gave you the idea that abstract ideas had to be vague and unclear? Even in a philosophy class that would fail. A religion class might be that way, but not mathematics.

“Furthermore, software and hardware are interchangeable.

Clearly, software is NOT abstract.”

And you are still wrong. But seeing what you think are abstract ideas, it is explainable.

MikeMay 14, 2013 9:06 pm

@Everyone:
It seems that we have a lot of different definitions of ‘abstract’ floating around. Jodi says it means vague, NWPA says it means broad, and Paul gave a set of dictionary definitions and picks 1 as the best fit here. (I’d generally agree with Paul, but I’d add that 2 and 4 are not bad, but 3, 5, and 6 are.)

Are there any other definitions out there? Is there any particular reason to use your favorite definition over the others?

Ron HiltonMay 14, 2013 10:47 pm

The only reason that pure math and abstract ideas in general are not patentable is lack of utility. Math certainly comprises novel, non-obvious processes. But Sec 101 states that it must be a “useful” process. In other words, the math has to have a real-world application to become patent-eligible.

The only reason scientific discoveries are not patentable is lack of novelty. Scientific phenoma certainly comprise non-obvious, useful processes. But since the phenomon already existed in nature before it was discovered, by definiton it can not be novel.

If you are dissatisfed with software patents for whatever reason, you need to attack them on a valid legal basis, such as novelty or obviousness. Trying to argue that software is too abstract to be patented will get you nowhere. Even the most “abstract” high level language is not too abstract for patentability, if it is applied to a useful process. These arguments about how close a certain level of code is to the hardware are totally irrelevant. As long as there is a connection to a useful real-word purpose, it is not “abstract” in the legal sense of patentable utility.

Wayne BoreanMay 14, 2013 11:23 pm

@Anon

“either to lazy or to unskilled to use “BOOCKQUOTE””

Wayne, I find this comment of yours to symbolize your typical post: way too self-centered and off the mark.

Not at all. When it is nearly impossible to read what you’ve written because of the formatting, it is very germaine. FYI, I’m also a professional Fiction writer. I write Horror and Dark Fantasy mostly, and do some editing and layout work, so possibly I’m a bit more sensitive to layout and grammar problems than most.

@Jesse

“Just curious, but am I the only person who programs in HTML here? Most of the comments are virtually unreadable because people are either to lazy or to unskilled to use “BOOCKQUOTE”.”

No, but there is no preview, and no guidelines on what is the acceptable HTML subset used.

It’s pretty standard stuff. Every Word Press site on the planet uses it. Of course I run Word Press myself, so I may have an unfair advantage.

I’m really pressed for time right now, but something you said caught my eye Jesse, it was:

One of main purposes of the patent system is to BLOCK COPYING in order to incentivize CREATING NEW.

If you can quote the exact point in the law where it says this, I’d be surprised. Article 1, Section 8 of the United States Constitution says:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Now you could try to argue that is what it means, but the wording is pretty plain. To promote the Progress of Science and useful Arts. It gives an exclusive right, but does not mention blocking copying, because that does not appear to be the intent. Instead the intent appears to be to increase the general welfare of the population of the United States.

And indeed that seemed to be the case for the first couple of hundred years. The United States resisted recognizing copyrights and patents granted by other nations, allowing American citizens to use them without offering recompense to the citizens of those other nations. This is of course totally against what the United States wishes to do now, and is a part of history which it is trying to forget.

It is however well documented, and I doubt that the Founders of your country, and the framers of the Constitution were unaware of what they were doing.

Wayne

jesseMay 15, 2013 7:35 am

@Ron Hilton

“If you are dissatisfed with software patents for whatever reason, you need to attack them on a valid legal basis, such as novelty or obviousness.”

The simple one is obviousness. A processor is designed and created to process ALL computable mathematical functions. Patenting software (a written mathematical function) is obviously patenting something that the processor is already patented to do.

All software is just a mathematical derivation from a given goal, and the axioms of mathematics, thus it fails on the novelty as well.

As software is a subset of mathematics it is also excluded.

“Trying to argue that software is too abstract to be patented will get you nowhere. Even the most “abstract” high level language is not too abstract for patentability, if it is applied to a useful process.”

How about we patent the methods of Law then? They are supposed to be abstract, and applied to a “useful process” as well.

AnonMay 15, 2013 8:07 am

“Patenting software (a written mathematical function) is obviously patenting something that the processor is already patented to do.‘

Most definitely not. That’s like saying that since all elements are known, there can be no patents on any material things, since all matter must be composed of elements.

jesse, without the ad hominem, and without you caring to have a basic understanding of law, I am at a loss as to how to communicate with you. You are just so far off from reality.

AnonMay 15, 2013 8:48 am

response to Wayne stuck in the filter – just release one please.

NWPAMay 15, 2013 9:05 am

@Mike Are there any other definitions out there? Is there any particular reason to use your favorite definition over the others?

Bilski dissent by Newman, Haliburton by SCOTUS, Bilski by SCOTUS, and engineering definition which is expressed well by Newman in the Bilski dissent. And, Benson by the SCOTUS.

You see you have hit on the problem. The courts are trying to use this word as a fudge word meaning that whatever they don’t like is abstract. That is why this word is so confusing–by plan!

AnonMay 15, 2013 9:31 am

Wayne,

I cannot torture the constitution to reach your view of “It gives an exclusive right, but does not mention blocking copying, because that does not appear to be the intent.”

To get there you have to have one very odd definition of the word exclusive. You would also have to disregard all legal precedent as to what that word means. That precedent does define the term differently for patents than for copyrights, but as I have already mentioned, the two vehicles of protection cover different aspects of intellectual property.

It is this type of fantasy that takes you out of this universe – that is not ad hominem, that is a realistic view of the positions being taken.

jesseMay 15, 2013 10:14 am

@ANON
“Most definitely not. That’s like saying that since all elements are known, there can be no patents on any material things, since all matter must be composed of elements.”

Nope. Not the same at all. In mathematics, once you remove a mathematical method from use (aka patent), you remove ALL solutions to the problem as they are all just a mathematical identity.

With elements, you can patent a device, but the principle of that device can used to construct many different devices.

For it to be like your description, it would be like patenting the element Iron just because using iron is the method to implement a specific device. Thus preventing the use of iron for anything else.

“jesse, without the ad hominem, and without you caring to have a basic understanding of law, I am at a loss as to how to communicate with you. You are just so far off from reality.”

Unfortunately, law (at least with software patents) seems to be so far away from reality that it borders on fantasy.

AnonMay 15, 2013 10:44 am

“With elements, you can patent a device, but the principle of that device can used to construct many different devices.”

No – you are missing the exact same analogy of the identity.

“For it to be like your description, it would be like patenting the element Iron”

No – this would be like patenting “Pascal,” or “C#” and not what you DO with it.

Your comments on law are without merit – you have not bothered to understand them yet, and insist on using circular reasoning.

AnonMay 15, 2013 10:45 am

And to take it one step further (or rather, to repeat an item that you were correced on, and never came back to),

Copyright does not innure to software as you are using that term.

Ron HiltonMay 15, 2013 10:48 am

@Jesse – What do you have left if you “remove” the mathematics from electrical engineering? From mechanical engineering? From chemical engineering? If “removing the mathematics” becomes a patentability criteria for software engineering, then nothing is patentable. Hmm, maybe destroying the patent system altogether is your objective. For one so wise in the way of mathematics you employ a very curious brand of logic, which is the foundation of mathematics. I have degress in both Mathematics and Electrical Engineering, with a computer emphasis. What are your qualifications?

jesseMay 15, 2013 10:59 am

@ANON

“No – this would be like patenting “Pascal,” or “C#” and not what you DO with it.”

Patenting either one removes the other from use. They are equivalent. One may be easier to use for some problems, but they both do the same thing.

Your description here would be like patenting all elements.

jesseMay 15, 2013 11:17 am

@Ron Hilton

@Jesse – What do you have left if you “remove” the mathematics from electrical engineering? From mechanical engineering? From chemical engineering? If “removing the mathematics” becomes a patentability criteria for software engineering, then nothing is patentable. Hmm, maybe destroying the patent system altogether is your objective. For one so wise in the way of mathematics you employ a very curious brand of logic, which is the foundation of mathematics. I have degress in both Mathematics and Electrical Engineering, with a computer emphasis. What are your qualifications?

In what way do you mean “remove”? If you mean “remove the use of mathematics in electrical engineering”, you will end up with no devices.

Yet, that is exactly what patenting mathematical methods is doing do the field of computer science.

I have an Engineering degree in Computer Science with a minor in mathematics, plus 40 years of work in the field.

jesseMay 15, 2013 11:22 am

@ANON

Anon May 15th, 2013 10:45 am

And to take it one step further (or rather, to repeat an item that you were correced on, and never came back to),

Copyright does not innure to software as you are using that term.

Tell that to Microsoft. They seem to think copyright applies that way.

AnonMay 15, 2013 11:35 am

No. They don’t. They are using that term with a correct view of the law.

That is the point – you are not bothering with the correct view of the law. That is why discussion with you is not going anywhere.

JodiMay 15, 2013 1:41 pm

hilarious, Jesse just admitted one programming language is the same as another!:

@ANON

“No – this would be like patenting “Pascal,” or “C#” and not what you DO with it.”

Patenting either one removes the other from use. They are equivalent. One may be easier to use for some problems, but they both do the same thing.

AnonMay 15, 2013 1:50 pm

Jodi,

With all due respect to Jon, Mike and Paul, jesse has failed to make a cogent position on most every point here. He is simply babbling rhetoric and is not being reasonable or logical, and is in fact doing a serious disservice to those who might hold similiar views.

MikeMay 15, 2013 2:17 pm

@Jodi:

hilarious, Jesse just admitted one programming language is the same as another!:

What exactly is your point here?

jesseMay 15, 2013 2:34 pm

@jodi

hilarious, Jesse just admitted one programming language is the same as another!

I never said anything different. Whether it is between high level languages, or machine code. They are mathematically equivalent. That is what allows them to be translated from one to another.

What can be expressed in one, can be expressed in the other. Doesn’t mean it is as concise of course. A few languages are deliberately not complete (usually VERY problem specific), but as long as the language is Turing complete, any such language can be translated into the other.

That just happens to be one of the properties of mathematical languages, and mathematics in general.

jesseMay 15, 2013 2:39 pm

@ANON

With all due respect to Jon, Mike and Paul, jesse has failed to make a cogent position on most every point here. He is simply babbling rhetoric and is not being reasonable or logical, and is in fact doing a serious disservice to those who might hold similiar views.

But it seems courts are beginning to agree with me.

AnonMay 15, 2013 3:08 pm

“courts are beginning to agree with me”

I have to laugh as the courts not being cogent is usually not a reason to be so joyous.

Ron HiltonMay 15, 2013 4:43 pm

@Jesse – 40 years.. Well I guess I could claim 41 yrs since I started college at age 16, but I think you probably have me beat on longevity. If you’re that old then you must have some IBM 360 mainframe background, and seen how software has evolved from a free, incidental add-on to the main bread and butter revenue source of the computing industry. Maybe you’re nearing retirement now and can afford to bite the hand that fed you? If so, at least try to use moe legally and mathematically sound arguments in your efforts, rather than appealing to judges who have far less technical experience than you.

Wayne BoreanMay 15, 2013 7:50 pm

To get there you have to have one very odd definition of the word exclusive. You would also have to disregard all legal precedent as to what that word means. That precedent does define the term differently for patents than for copyrights, but as I have already mentioned, the two vehicles of protection cover different aspects of intellectual property.

What is the exact wording of the law? The Constitution gave the legislative branch power to do something, if it saw fit, in any way it saw fit. Now going by admittedly falible memory, the implementation of an invention in my backyard workshop for my own use, isn’t Patent Infringement. Patent Infringement only comes into play if I try to sell the device.

Correct? That means that the right is not totally exclusive. It is functionally exclusive from a market standpoint, which is a different thing.

Legal precedent is that unless I try to sell the device, I’m covered. If I build it for my own purposes, possibly because I’m experimenting to find a better way to do the same thing, I’m not selling it. If I build it for my own specific use (whatever that is), but I’m not selling it, I’m covered.

The second I try to sell it, I’m liable.

Wayne

AnonMay 15, 2013 10:09 pm

“for my own use”

The great lawyer answer – that depends. If “use” is anything beyond either mere curiosity to see if the invention actually works or idle speculation and enjoyment – sorry, that’s infringement. So “only if sell” is not quite right. If you use it for gain without selling it – sorry, that’s infringement. The experimental use exception is a trickery point. There are some who feel as you do – even allowing for experimentation to devise a market replacement. However, the consensus jurisprudence (and the tone of the recent Monsanto case bears this out) is that such use is considered infringement insofar as you are depriving the inventor of his fruits through the use of the device – even though that use is just indirect. You are in fact proffiting and not paying your share, and thus: infringement (and violation of the exclusive right). The historical basis of the personal use is very much tied to a non-profit motive only. Making a work-around device is very much profit-centered. Selling is not the sole driver of liability.

As I mentioned, the word “exclusive” does have legal precedent that is not freely ignored (even if you don’t like it – as jesse is all set to do). As I also mentioned, exclusive is not even the same between patents and copyrights, even though a single constitutional phrase is the genesis of Congress’ authority. That legal precedent is not your version of the market standpoint.

jesseMay 16, 2013 4:26 am

@Ron Hilton

@Jesse – 40 years.. Well I guess I could claim 41 yrs since I started college at age 16, but I think you probably have me beat on longevity. If you’re that old then you must have some IBM 360 mainframe background, and seen how software has evolved from a free, incidental add-on to the main bread and butter revenue source of the computing industry. Maybe you’re nearing retirement now and can afford to bite the hand that fed you? If so, at least try to use moe legally and mathematically sound arguments in your efforts, rather than appealing to judges who have far less technical experience than you.

Already retired. My first “hands on” programming was an IBM 360/65 as an undergrad, but had contact with computer concepts starting around 16.

My dad taught engineering physics, so I got to start playing with lab instruments around 9, with electronics by 10, digitial electronics by 12 to 14 (I still remember “The TTL cookbook” with introductions to what became ALUs), reading physics papers around (American Journal of Physics) at the same time. He was teaching us kids algebra and calculus well before high school.

But “bite the hand that fed you”? no. The only thing biting the computer and software industry is the 30 billion dollar a year legal extortion business, of which nearly none of the money actually goes to anyone actually working in software. That is a lot of software not developed, not researched, and not sold. And a LOT of jobs.

But, I have been on the business side too. It takes some getting your head around these issues because the stakes are so high that there is a lot of noise out there.

But, Microsoft would not have built a research center but for patents.
Corporations will just take software without patents. Trust me I have worked for one of the largest corporations. The culture was one of take what we can. It was the only way to survive.

Besides, these programs that were just number crunching in the beginning have changed. The programs are now much more work than the hardware. The programs are now what it is all about.

But, I have been on the business side too. It takes some getting your head around these issues because the stakes are so high that there is a lot of noise out there.

So have I. Both research and development.

But, Microsoft would not have built a research center but for patents.

So AT&T did not? IBM did not? Cray did not?

All were/are theoretical studies. MOST of their results are not patentable.

Corporations will just take software without patents. Trust me I have worked for one of the largest corporations. The culture was one of take what we can. It was the only way to survive.

Just like RH only takes? or IBM only takes? or Google only takes?

You didn’t learn the advantage of shared research.

Besides, these programs that were just number crunching in the beginning have changed. The programs are now much more work than the hardware. The programs are now what it is all about.

The IBM 360 was designed for business, and many companies adopted it, developed lots of software and shared it (remember Share? Sharing methods, software, techniques?). There were a lot of others, usually clustered around a vendor. Each would share software, accept new software, and redistribute. I used to be the one getting the DECUS source tapes, review contents and pass around the list of software available.

Just because something takes a lot of work does not make it patentable. Mathematics has always taken a lot of work.

Ron HiltonMay 16, 2013 9:21 am

@Jesse – OK, you’ve convinced me you do actually understand software technology. But you still don’t understand patent law (along with half of the FC panel of judges, apparently). Your argument is “software = math = abstract idea = unpatentable.” But in patent law, “abstract idea” simply means “not useful.” If software is not useful, then your 40 year career must have been a complete waste. The correct legal argument to invalidate a bad software patent is “the method is known, computers are known (i.e. both fail the novelty test), and automation of known method is obvious (i.e. computerization in and of itself fails the non-obviousness test). You would wipe out a whole industry by invalidating an entire category of patents, rather than just focusing on the bad ones.

Your motivation seems to be that “none of the money goes to anyone actually working in software.” The truth is that commercial software pays a lot of the bills in the industry, even if an individual programmer can’t see the connection between the patent portfolio that protects his employer that pays his salary or contract. If that programmer wants, and is entreprenuerial enought, they have every right to patent their own work and license or sell it. But most people including programmers just want to practice their craft and hope the world notices and rewards them – which is fine – but just don’t expect the reward to be large or directly tied to a specific accomplishment.

JodiMay 16, 2013 10:10 am

Jesse,

the 30 billion dollar a year legal extortion business, of which nearly none of the money actually goes to anyone actually working in software. That is a lot of software not developed, not researched, and not sold. And a LOT of jobs.

You are drinking the mainstream media’s koolaid. That $29b figure was constructed by the anti-software patent industry to feed the gullible masses. It has been debunked. Not only was that number largely inflated, but it included items like the one-time $5b purchase of the Nortel patents. Surely you admit the motivation was there to create such figures.

But your tone implies the patents were created out of thin air! Just who do you think came up with all of the small incremental improvements that those patents focused on? I’ll tell you who: Engineers, computer, scientists, scientists, etc… Jobs and activity in those fields.

Quote from Kappos:

Software patents, like all patents, are a form of innovation currency. They are also ecosystem enablers, and job creators.

Anyone ever in a position where innovation was vital and crucial would understand this.

The study found that intellectual property intensive industries support at least 40 million jobs in the United States and contribute more than $5 trillion dollars to U.S. gross domestic product (GDP). That is to say that 27.7% of all jobs in the U.S. were either directly or indirectly attributable to IP-intensive industries, and the amount contributed to the U.S. economy represents a staggering 34.8% of GDP.

“This first of its kind report shows that IP- intensive industries have a direct and significant impact on our nation’s economy and the creation of American jobs,” said Commerce Secretary John Bryson. “When Americans know that their ideas will be protected, they have greater incentive to pursue advances and technologies that help keep us competitive, and our businesses have the confidence they need to hire more workers. That is why this Administration’s efforts to protect intellectual property, and modernize the patent and trademark system are so crucial to a 21st century economy that is built to last.”

“Every job in some way, produces, supplies, consumes, or relies on innovation, creativity, and commercial distinctiveness,” said Under Secretary of Commerce for Intellectual Property and USPTO Director David Kappos. “America needs to continue investing in a high quality and appropriately balanced intellectual property system that will promote innovative, open, and competitive markets while helping to ensure that the U.S. private sector remains America’s innovation engine.”

Stuart Graham:

So intellectual property is having a huge impact and the users of intellectual property are contributing mightily to the economy. They are contributing 61% of merchandise exports, as the Secretary of Commerce said in his comments. So these industries are creating great jobs and they are contributors to the economy. If there is a lesson coming out of this report, it is that these are the industries and these are the jobs America needs to be investing in. So when America invests in, for instance, the US Patent and Trademark Office, insuring that we have the resources necessary for us to do a high quality job for all of the users, we are investing in America and we are investing in America’s future.

Everyone promotes the virtues of innovation and the American innovator, which leads to the formation of a start-up business, which in turn leads to job creation and economic growth. Yet at the same time patent haters keep their head firmly planted in the sand, actually failing to understand the basic definition of innovation. Merriam-Webster defines “innovation” simply as “the introduction of something new.” What is new about copying others? NOTHING! Thus, the undeniable truth is that patents do not hold up innovation, and those who are blocked by patents are nothing coming up with something new. They are simply seeking to copy the work of others.

Ciesla, a physicist, had a name for his company: Tactus Technology. But before he began bringing his invention to life, Ciesla decided to sit down and hammer out a patent application, spending much of his company’s early days playing lawyer rather than inventor. “We filed 20 applications before even doing our first round of outside funding,” Ciesla says. “Our main office was my dining room table.”

Across Silicon Valley, desks strewn with patent applications compete with gritty garages as the standard birthplace of new products. Startups no longer race headlong to develop prototypes as fast as possible. Instead, they must first protect them with bulletproof intellectual property portfolios that can take years to build.

As we’ve established, software, hardware is the same sequence of instructions. Both software and hardware startups need to protect themselves from large competitors. If you’re innovative, you make your own job.

That is not a logical conclusion. An “abstract idea” on its own is not necessarily useful. But it can lead to an understanding of a lot of other concepts. That is one reason religion, and philosophy exist.

Mathematics is a method of rigorous analysis of abstract ideas. Doing so allowed the discovery that symbols could be identified by numbers. Boolean algebra provided a logic for symbol evaluation. That development combined with various mathematics implied that devices that could follow/emulate the logic of mathematics could perform/evaluate mathematical expressions.

Remember, the original meaning of “computer” was “person who computes”. The first computer engineers were people that assembled a horde of “people who compute” into a regimented organization just to compute neutron cross sections while developing a “device”. These engineers had to develop mathematical methods to identify errors, and recover from errors without having to redo the work (which might take a months to redo). When they got the chance, they devised a machine that could do the same work as that “horde of people who compute”.

If software is not useful, then your 40 year career must have been a complete waste. The correct legal argument to invalidate a bad software patent is “the method is known, computers are known (i.e. both fail the novelty test), and automation of known method is obvious (i.e. computerization in and of itself fails the non-obviousness test). You would wipe out a whole industry by invalidating an entire category of patents, rather than just focusing on the bad ones.

Software on its own is not useful. It requires a device or person to process it. Such a device is designed to do all possible computations. So software is just discovering the specific computation desired.

The only industry that might be wiped out are patent trolls.

Unfortunately for you, there are no valid software patents.

As Bill Gates said:

“If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”

Well, that standstill is now costing around 30 billion per year.

Your motivation seems to be that “none of the money goes to anyone actually working in software.” The truth is that commercial software pays a lot of the bills in the industry, even if an individual programmer can’t see the connection between the patent portfolio that protects his employer that pays his salary or contract.

That “commercial software pays a lot of the bills in the industry” would still be true, and has nothing to do with software patents.

The “software patents” are only there to hopefully prevent someone else from suing over software patents. Having to go through the effort to get the patent issued is just a drag on the company. Even then, the company can still be wiped out by a lawsuit even if the company wins the lawsuit. So what benefit is the patent to the company?

If that programmer wants, and is entreprenuerial enought, they have every right to patent their own work and license or sell it.

I can say exactly the same thing about copyrighting it and “license or sell it”.

But most people including programmers just want to practice their craft and hope the world notices and rewards them – which is fine – but just don’t expect the reward to be large or directly tied to a specific accomplishment.

Which is just like most mathematicians. Yet, there are still lots of mathematicians to go around, performing their jobs, performing research, quality control analysis, data analysis,… Besides, there are lots of rewards directly tied to accomplishments. One is fame. Babbage didn’t get fortune – and didn’t even become famous in his time. But he famous now as as the designer of the first true mechanical computer (it is even being built), and Ada Lovelace as the first programmer. As are George Boole, Kurt Gödel, Alan Turing, John von Newmann, and so many others. None of their work depended on software patents, yet their work is more important than any software patent, as the entire software and computer industry depend on it.

Fortune is overrated as a reward.

Current fame is accorded to people like Linus Benedict Torvalds, for his non-patentable work with software… which happens to operate 90+% of the worlds supercomputers, and makes cellphones more affordable.

jesseMay 16, 2013 2:56 pm

@jodi

I can accept that my numbers (and yours for that matter) are inflated. Economists are most often wrong.

But your tone implies the patents were created out of thin air! Just who do you think came up with all of the small incremental improvements that those patents focused on? I’ll tell you who: Engineers, computer, scientists, scientists, etc… Jobs and activity in those fields.

Actually, they were. By pulling the wool over a judges/USPTO eyes and describing various mathematical operations as a “technological method”. Judges in many countries are now beginning to realize this, and are correcting their mistake.

Quote from Kappos:

Software patents, like all patents, are a form of innovation currency. They are also ecosystem enablers, and job creators.

That is an assumption, but a reasonable one. The only thing is, mathematics is explicitly not a patentable field.

JodiMay 16, 2013 3:40 pm

Right, so Jesse 1) introduces the $30b, 2) admits it’s one-time, highly inflated and wrong, 3) but then goes on to repeat it again. The anti-patent gang are transparent with their continuous perpetuation of falsehoods.

JodiMay 16, 2013 4:04 pm

Another Jesse contradiction:

An “abstract idea” on its own is not necessarily useful.

Yet software is useful. Therefore, software is not abstract.

JodiMay 16, 2013 4:35 pm

Jesse said:

The only industry that might be wiped out are patent trolls.

Wrong, small innovators would be wiped out, not trolls.

Wayne BoreanMay 16, 2013 5:02 pm

@Jodi, @Jesse, @Ron Hilton, @NWPA, @ANON,

Please folks, behave. We all know that numbers don’t lie but liars can figure. I personally wouldn’t trust the numbers coming out of EITHER SIDE OF THIS DEBATE. Don’t forget I’m the guy who proved that Microsoft is heading for bankruptcy using their own SEC filings…

Now I’m probably right about Microsoft, but I know how numbers can, and are twisted. It isn’t hard.

Instead what you should be considering in my opinion is:

1) Is there any legal reason for this patent to have issued?
2) Is there any legal reason for it not to have issued?
3) How do those reasons affect other patents?

That’s what all this comes down to. Money means nothing. Jobs mean nothing. What does the law currently say, and is the law valid under the Constitution?

Wayne

Ron HiltonMay 16, 2013 7:34 pm

Knock yourselves out guys. This discussion seems to be just covering the same ground over and over again.

Another illogical statement. Useful abstract ideas are still abstract.

The idea of a chair is useful for the purpose of designing a chair. But you can’t patent the idea or design of a chair, only the real chair.

Jesse said:

The only industry that might be wiped out are patent trolls.

Wrong, small innovators would be wiped out, not trolls.

Nope. Small innovators would no longer be under the gun for a patent infringement lawsuit that puts them out of business.

I really must have hit a nerve.

jesseMay 16, 2013 9:33 pm

@Wayne Borean

Instead what you should be considering in my opinion is:

1) Is there any legal reason for this patent to have issued?
2) Is there any legal reason for it not to have issued?
3) How do those reasons affect other patents?

Good point.

#1, no.
#2, yes.

#2a. Mathematics as a field is expressly excluded from patentability.

#2b. Experts in the field have held for centuries that mathematics is an abstract art. Just declaring it “useful” does not turn it into a patentable subject.

#2c. Transforming a mathematical expression into a “method” description does not change the fact that it is a mathematical expression.

#3. There should be no effect. The transformation of matter, and the physical existence of transformed matter should hold true.

I HAVE questions on some biological patents, but because I am not an expert in that field I don’t have any firm opinions on them. Unless something about ethics comes into play… Then I get the right to evaluate how the presented ethical dilemmas may interact with my sense of ethics, and then my statements would be from the point of view of my ethics.

I don’t see a problem with MOST pharmaceutical patents. I do have a problem with those that do nothing but patent chemicals identified in plants. Patent the extraction, sure. Patent the manufacture of the chemicals, sure. But the patent on the chemicals themselves would seem to be patenting laws of nature or natural phenomena (and that applies to the current flock of gene patents – these already exist in plants and in people, thus natural phenomena and should be excluded). Those chemicals (or genes) manufactured completely within the lab and do not exist in nature, I don’t see anything wrong with at this time.

But that is a different subject from patenting abstract ideas and mathematics.

AnonMay 16, 2013 10:03 pm

Is the Arrhenius equation math?

Can I be any more explicit for you jesse?

jesseMay 17, 2013 5:38 am

@ANON

Is the Arrhenius equation math?

Can I be any more explicit for you jesse?

Yes. Obviously, it is the mathematical description of a physical transformation.

Arrhenius’ equation gives the dependence of the rate constant k of a chemical reaction on the absolute temperature T (in kelvin), where A is the pre-exponential factor (or simply the prefactor), E_a is the activation energy, and R is the Universal gas constant.

k = A e^{-E_a/(R T)}

Note, the formula can even be computed when the temperature (T), is 13,600,000….

Of course, at that temperature (hydrogen fusion) there is no such thing as a “chemical reaction” (everything is a plasma), but the evaluation of the abstract mathematical formula gives a value, nonsense though it may be in the real world.

AnonMay 17, 2013 7:59 am

Now jesse, with that admission, check out the law, please. See Diamond v. Diehr, 450 U.S. 175 (1981)

jesseMay 17, 2013 9:40 am

@Anon

Now jesse, with that admission, check out the law, please. See Diamond v. Diehr, 450 U.S. 175 (1981)

What admission?

That 13,600,000 kelvin is the estimated temperature required for fusion?

That no chemical bonds can exist at that temperature?

That the abstract mathematical formula is abstract?

That the formula is valid even for T = -100?

That the formula is NOT valid for T= 0?

NWPAMay 17, 2013 9:45 am

@Jesse:

You know what is your point? There is something that is just deeply offensive about your posts. It reminds me of someone saying you are a girl so you can’t be a scientist.

The information processing invention is math so it cannot be an invention.

What does that even mean? Represented information has structure, takes time, energy, and space to represent and transform. Do you dispute that? Does “math” include a step of represent information by a machine? NO!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! That is why math is not a machine and a machine is not math.

AnonMay 17, 2013 10:10 am

The admission that the Arrhenius formula is math.

Now, let’s see if you can understand the legal part.

jesseMay 17, 2013 10:29 am

@NWPA

Are you being incoherent for a reason?

jesseMay 17, 2013 10:30 am

@ANON

The admission that the Arrhenius formula is math.

Since you accept that it is math, then you know it is in a field not subject to patents.

NWPAMay 17, 2013 11:32 am

@Jesse: nice dodge.

NWPAMay 17, 2013 11:58 am

@jesse:

Does math include a step of representing information by a machine?

MikeMay 17, 2013 12:52 pm

@NWPA:

There is something that is just deeply offensive about your posts. It reminds me of someone saying you are a girl so you can’t be a scientist.

You’re deeply offended by someone having a different opinion than you do? I’m not even going to respond to the silly analogy.

Represented information has structure, takes time, energy, and space to represent and transform.

A representation of information is physical, the information itself is not.

Does “math” include a step of represent information by a machine?

This sentence doesn’t make sense.

AristotleMay 17, 2013 12:52 pm

While of course a movie isn’t patentable in the abstract, it seems to me like a DVD of a movie should be able to pass Section 101 eligibility. After all, the DVD is tangible, and when you put it in a DVD player it turns the generic DVD playing machine into a machine that plays a specific movie (plus a multiplicity of user-selectable extra features). Such a device is certainly useful because it provides entertainment.

Furthermore, in addition to those composition of matter and system claims, there are method claims. A DVD movie is not a straightforward digitalization of analog signals like a CD is. Instead, it is a list of instructions on how to generate a series of images using an impressive array of sophisticated techniques such as copying chunks of data from one frame to another, interpolating between frames, applying various image processing techniques, etc.

NWPAMay 17, 2013 1:25 pm

@Jesse:

Deeply offended is silly? No, it is coming from a gut feeling I have that your objection to information processing methods is motivated by something else. Either some arrogance that EE is better than CS or (as certainly is the case by some) a desire to rid the world of patents.

“This sentence doesn’t make sense.”

Why? My question strikes to the core of this discussion. Does “math” include a step of representing information?

“A representation of information is physical, the information itself is not.”
What does that mean? Information i s no physical? What is it then? What can anything be if it does not have a physical form? It must have some kind of physical form or it doesn’t exist.

Think about this. You cannot skip this. The information is taking on a physical form in the computer. You cannot deny this. And, it is being transformed by the computer.

We cannot skip over these points. They are the key. A bit of information is like a grain of wheat.

AnonMay 17, 2013 1:51 pm

“then you know it is in a field not subject to patents.”

Logic FAIL – I gave you the case.

jesseMay 17, 2013 2:32 pm

@NWPA
BTW, you attribute some of Mike had to say to me. I don’t object as I agree with him. I hope I do him justice with my own answers.

Why? My question strikes to the core of this discussion. Does “math” include a step of representing information?

That is a bit of a philosophic debate… But based on the mathematics of the universal algorithms developed…

No.

The mathematics only manipulates symbols that can be read. That manipulation can generate additional symbols… but only those symbols that are already in the mathematics system.

Usually the the step of representing information is assigned to devices that do not meet the mathematical standards of the universal algorithms. These devices are the peripherals that transform measurements of physical activity (real touch, movement, pressure) into coded electron flows. These flows are then treated according to the rules of boolean algebra. As long as the translation is consistent then they are treated as information that can be manipulated.

Such coding is handled by translating the physical pressure (for a single example) by mapping the specific physical electron flow using a table — to generate a boolean set assigned to represent a particular key. This device is a keyboard. There are a large number of additional characteristics of a keyboard in the real world, but none of those characteristics matter. How hard you press, whether you press with a finger, or pencil, size of the keyboard… none of that count. Only the fact that a single electron flow of a specific key can be mapped to a specific boolean value set.

The processor has absolutely nothing to do with that device, other than being able to retrieve that boolean set, and manipulate it. To the processor, it appears as just another storage location for information.

A similar translation is done by all output devices. Now GPUs are counted as peripherals, but these peripherals have processors on them. This does not change things one bit – all it does is put the frame buffer one step removed from the CPU. From the point of the GPU, (which does not do the translation), the frame buffer is the peripheral that translates the boolean values in the GPU memory/frame buffer into light.

“A representation of information is physical, the information itself is not.”

What does that mean? Information i s no physical? What is it then? What can anything be if it does not have a physical form? It must have some kind of physical form or it doesn’t exist.

Actually, information has no physical form.

Think about a cookbook. Look at a contained recipe.

Does the information in the recipe have a physical form? There is ink on paper. Is the recipe in the ink? no. Is the recipe in the paper? no. The recipe is coded in a pattern of ink on paper.

If a person can’t read, is the recipe there? no, not to that person.

Think about this. You cannot skip this. The information is taking on a physical form in the computer. You cannot deny this. And, it is being transformed by the computer.

No – There is nothing there but various flows of electrons.

We cannot skip over these points. They are the key. A bit of information is like a grain of wheat.

But a “grain of wheat” can be touched. It has physical existence that can be evaluated. A piece of information cannot.

Take a look at a tablet of information. It is called Linear script a. It cannot be deciphered, so no one can read it. It has information… but we cannot read it (https://en.wikipedia.org/wiki/Linear_A). And we cannot touch the information it even identify it. All that can be derived from it (at least currently) is that “They are believed to represent syllabic, ideographic, and semantic values in a manner similar to Linear B.”

But we cannot touch it, cannot use it, and cannot manipulate it. All attempts a translation basing the translations on understanding of a different, but related script (at least visually they appear related) “Using the values associated with Linear B in Linear A mainly produces unintelligible words.”

Is the information the grooves in the mud? Is it the mud? no. that is just depressions in mud.

The information is coded/written. It can only be manipulated if it can be read.

jesseMay 17, 2013 2:43 pm

@Anon May 17th, 2013 1:51 pm

“then you know it is in a field not subject to patents.”

Logic FAIL – I gave you the case.

Logic FAIL – I gave you the reason. It is an invalid patent that should not exist as mathematics is explicitly excluded from patentable.

AnonMay 17, 2013 3:28 pm

Sorry jesse, but we moved to the legal realm, where you do not get to make up the rules – here you are to learn and apply the rules.

The FAIL is you.

As it has been throughout this and the sister threads. You continue to try to live in another universe where the rule of law magically does not apply to you.

jesseMay 17, 2013 6:08 pm

@Anon

and you refuse to see that what makes your universe illogical will be removed.

Mathematics is explicitly listed to not be patentable. Computer science is a subset of mathematics.

Hence, the illogic will be removed.

AnonMay 17, 2013 6:40 pm

There is no logic in what you spout. You have failed (either intentionally or not it does not matter) to apply the law as you must, and you simply proclaim that the law must be wrong.

No reason – no legal reason provided. One of the things that you keep trying to ignore is that the use of mathematics – as in the case provided – is explicitly allowed to be patented. All you are doing is mindlessly chanting a mantra, unaware of the terrain about you, oblivious to all.

You will note that forum in this last example upon which we disagree is the forum that you have chosen to remain ignorant of. You display poor thinking and a startling lack of logic for proceeding as you do. As I have indicated, whatever end result you hope for, whatever cause you think that you want to promote can only be embarrassed by such poor use of logic and reason.

MikeMay 18, 2013 1:47 am

@NWPA:

“A representation of information is physical, the information itself is not.”
What does that mean? Information i s no physical? What is it then? What can anything be if it does not have a physical form? It must have some kind of physical form or it doesn’t exist.

If you think something must have physical form or else not exist, then you must either think that math is not real, or else you think the number 1 has a physical location. So where is the number 1? Is it in a museum in France somewhere? If a vandal smashed it, would we find ourselves unable to count?

My question strikes to the core of this discussion. Does “math” include a step of representing information?

If it gets at the core of the discussion, then it should be worth explaining. I can’t tell what you’re getting at. It kind of seems like you’re mistaking all of mathematics for a single patent application.

NWPAMay 18, 2013 5:38 am

@Mike So where is the number 1?

Mike, the number 1 has physical form in your brain and the brain of humans. You and @Jesse don’t seem to understand how your brain works.

A number represented in a computer is doing what your brain does. A number represented in a computer has structure and physicality. @Jesse: information is represented at its basic level of 0 or 1. The physicality is by the electrons. That is physicality. To transform that physicality from (for example) an unsorted set of numbers to a sorted set of numbers takes time, energy, and space. It is like a grain of wheat. Just because you can’t touch it doesn’t mean it doesn’t exist Jesse.

AnonMay 18, 2013 7:35 am

“information is represented at its basic level of 0 or 1.”

Not all information is binary.

That being said, a lesson is available to those willing to grasp it.

The binary treatment of information is a conscious decision (along the lines of the map is not the world).
It is an approximation of the real.At the same time (and hence causing confusion to those who refuse to understand the legal aspects), it is an abstraction from the underlying real and it is an embodiment of a conscious choice (a higher level abstraction). Just as it is not the real – it is also not the higher level abstraction – every bit [pun intended].

As in ALL useful arts, there is a ladder of abstraction that is used.

What the take-away from the no-decision Alice case should be is that the Supreme Court cannot continue to dither on its interpretation of the Congress set statutory categories.

The problem is not the law as written.

The problem is that a small group of men do not want to lose what they perceive to be their control – no matter how tenuous (legally) that control is tied to the statutes. Their recent cases have been clear: they are not really interpreting the statutes for the statutes’ sake; but rather, they are interpreting the statutes as a means of maintaining their letters of interpretation. I have become convinced that the problem with patent law 101 jurisprudence is merely a reflection of the highest court in the land overstepping the constitutional boundary and not wanting to let go. This, driven by pride, is what has led to the fall.

jesseMay 18, 2013 7:48 am

@NWPA May 18th, 2013 5:38 am

@Mike So where is the number 1?

Mike, the number 1 has physical form in your brain and the brain of humans. You and @Jesse don’t seem to understand how your brain works.

Actually, it is you that doesn’t understand.

You cannot point to any part of the brain for the number 1. It doesn’t exist. That is why it is called “abstract”.

A number represented in a computer is doing what your brain does.

No it isn’t. If it were, then it would not be following the rules of mathematics.

A number represented in a computer has structure and physicality.

Where? What physicality is it that is the number?

@Jesse: information is represented at its basic level of 0 or 1.

No it isn’t. They are only symbols. The symbols T F were used first in boolean algebra, the axioms only have any TWO symbols. Not just 0 and not just 1.

The physicality is by the electrons. That is physicality.

No – those are just electrons. Every electron is identical to every other electron. Yes, electrons do have a physical reality. They have mass, and energy.

What is the mass of a number? Or the energy of a number?

The only things in the universe that does not have mass are called photons. They always move at the speed of light. They do have energy. But photons are not numbers. I can touch photons, but still I cannot touch a number.

To transform that physicality from (for example) an unsorted set of numbers to a sorted set of numbers takes time, energy, and space. It is like a grain of wheat.

Just like it takes time energy and space for your brain to manipulate symbols to accomplish the same thing. To the best of our knowledge today, it does take energy to manipulate symbols.

I can touch a grain of wheat. I cannot touch a number as it has no physical existence. That is why it is an abstract concept.

Just because you can’t touch it doesn’t mean it doesn’t exist Jesse.

I can touch electrons. I can’t touch a number. And neither can you.

Can you touch “justice”? no.
Can you touch “love”? no.
Can you touch “English”? no.

All are abstract concepts with no physical existence, just as mathematics is an abstract study.

The binary treatment of information is a conscious decision (along the lines of the map is not the world).
It is an approximation of the real.

So you agree that it is “not real”, and thus abstract.

At the same time (and hence causing confusion to those who refuse to understand the legal aspects), it is an abstraction from the underlying real and it is an embodiment of a conscious choice (a higher level abstraction). Just as it is not the real – it is also not the higher level abstraction – every bit [pun intended].

As in ALL useful arts, there is a ladder of abstraction that is used.

What the take-away from the no-decision Alice case should be is that the Supreme Court cannot continue to dither on its interpretation of the Congress set statutory categories.

I agree with that.

The problem is not the law as written.

I’ll even agree with that

The problem is that a small group of men do not want to lose what they perceive to be their control – no matter how tenuous (legally) that control is tied to the statutes. Their recent cases have been clear: they are not really interpreting the statutes for the statutes’ sake; but rather, they are interpreting the statutes as a means of maintaining their letters of interpretation. I have become convinced that the problem with patent law 101 jurisprudence is merely a reflection of the highest court in the land overstepping the constitutional boundary and not wanting to let go. This, driven by pride, is what has led to the fall.

If by “small group of men” you mean the patent lawyers, true. They were pulling the wool over the eyes of the judges and getting away with it due to ignorance of the judges. If you mean the judges, I believe that is their job to make such evaluations. They can be overruled, but by the Supreme Court. As I understand it, they have to take guidance from the Supreme Court.

Now that the judges are seeing the results of the error, they are beginning to correct it (of course, this is in my opinion). That IS their job, isn’t it?

In what way has the Supreme Court been “overstepping the constitutional boundary”? They have the ultimate power of declaring a law unconstitutional, it is their job to make that evaluation, but the case must be brought before them before they can decide a ruling. Can they make mistakes? Sure, and they can correct them.

MikeMay 18, 2013 10:51 am

@NWPA:

Mike, the number 1 has physical form in your brain and the brain of humans. You and @Jesse don’t seem to understand how your brain works.

That isn’t the number 1, that’s a representation of the number 1. It has plenty of other representations too, such as pencil marks on paper, ink on paper, chalk on a chalkboard, indentations in sand, carvings in rock, vibrations in air, indentations in baked clay, paint on a wall, and configurations of electrical signals. Which electrical signals? *Any* signal or set of signals or configuration of signals that we designate.

To transform that physicality from (for example) an unsorted set of numbers to a sorted set of numbers takes time, energy, and space.

How much time, energy, and space? What configurations of matter are used? The information and the abstract algorithm that transforms it into other information are the only constants. The particular material used to represent this abstract transformation is completely arbitrary.

Sure, there’s a physical representation of the abstraction, but so what?

It is like a grain of wheat.

How?

NWPAMay 18, 2013 11:58 am

@Mike It is like a grain of wheat. How?

Because the bit is represented by electrons. It has physicality. A number is an an abstract. The electrons are what we are calling a 0 or 1. The bits are being operated on by the method just as in Deener the method operates on wheat grains. I am sorry you guys don’t want to understand this. But, this is physical reality. The reason the computer is not math is that it is operating on represented information. The game of trying to say “information” is abstract is a red herring. The electrons are not abstract. The transformation from say sorted to unsorted is not abstract. And, requires space, time, and energy.

So, we have a physical transformation. I should publish a paper explaining this to a wider audience. It is interesting to see how you two try to worm out of understanding this rather than putting some work into understanding that numbers and math exist in our heads and artifacts only. And quibbling about what to call a bit of information is meaningless. It has a physicality. That physicality is being transformed. That transformation takes time, energy, and space. That is every bit as “real” as processing a grain of wheat.

And, don’t be ridiculous. A number 1 must be represented by the neurons of our brains. Just because I can’t point to it, doesn’t mean it doesn’t exist.

NWPAMay 18, 2013 12:03 pm

And, at this point I think Mike and Jesse are being intellectually dishonest and I suspect they are not who they claim to be.

So, let’s take it slow: does a bit on a computer of 0 or 1 have physicality?

NWPAMay 18, 2013 12:09 pm

is changing a 0 to a 1 on a computer a transformation?

jesseMay 18, 2013 2:02 pm

@ NWPA

@Mike It is like a grain of wheat. How?

Because the bit is represented by electrons. It has physicality. A number is an an abstract.

You do have to realize that a REPRESENTATION of a thing is not the thing itself. That is why you cannot touch it.

It is also why you have to accept that fact that numbers are abstractions.

The electrons are what we are calling a 0 or 1.

Those are just electrons. Electrons are not 0 or 1. They are just electrons. It is impossible to look at an electron and even know if it even represents a 0 or a 1, since the representation can be for either symbol.

The bits are being operated on by the method just as in Deener the method operates on wheat grains.

The bits are abstract, so the “method” is also be abstract.

I am sorry you guys don’t want to understand this. But, this is physical reality. The reason the computer is not math is that it is operating on represented information.

It doesn’t operate on “representations” as they don’t exist. The computer as a physical device can only operate on physical objects.

The game of trying to say “information” is abstract is a red herring. The electrons are not abstract. The transformation from say sorted to unsorted is not abstract. And, requires space, time, and energy.

So, we have a physical transformation. I should publish a paper explaining this to a wider audience. It is interesting to see how you two try to worm out of understanding this rather than putting some work into understanding that numbers and math exist in our heads and artifacts only.

We don’t have to worm out of anything. And it would be interesting to see what happens with such a “paper”, as it could not be published in any journal I can think of. It wouldn’t pass the peer review.

And quibbling about what to call a bit of information is meaningless. It has a physicality. That physicality is being transformed. That transformation takes time, energy, and space. That is every bit as “real” as processing a grain of wheat.

Processing a grain of wheat gives you flour. Not numbers.

And, don’t be ridiculous. A number 1 must be represented by the neurons of our brains. Just because I can’t point to it, doesn’t mean it doesn’t exist.

Exactly – it is REPRESENTED. But again, a representation of a thing is not the thing itself.

Just like the shadow in Plato’s Cave – The shadow is only a representation; it is not the thing itself.

And, at this point I think Mike and Jesse are being intellectually dishonest and I suspect they are not who they claim to be.

No, you are just seeing the same difficulty that the judge had when the issue came up. It is difficult, especially when overcoming previous assumptions. I went through it too, about four semesters… – it wasn’t until a class in abstract algebra settled the concept in my mind.

So, let’s take it slow: does a bit on a computer of 0 or 1 have physicality?

So there is nothing done to convert a 0 to a 1 or a 1 to a 0. As a topic, the goal is to REMOVE such circuits that cause electronic transformations for speed, and cost.

But doing so doesn’t remove the required mathematical logic… It just changes the symbols assigned… As long as the entire circuit is mathematically consistent it still works. But you have to be VERY careful to maintain that mathematical consistency (I had lunch room conversations with a circuit designer while he worked for a month doing nothing but this for one ASIC design).

JodiMay 18, 2013 3:32 pm

Jesse,

Another contradiction in the same post:

You do have to realize that a REPRESENTATION of a thing is not the thing itself. That is why you cannot touch it.

and

Processing a grain of wheat gives you flour. Not numbers.

If it helps you, think of wheat as a “representation” of an arrangement of molecules and atoms. Those same molecules and atoms and be broken down and used to form other “representations” (like soil, silicon, computer chips, etc…). Data/software is “represented” as electrons arranged in a specific way. Once data/software enters a computer, it takes the form of electrons. Electrons are physical. Physical is patentable.

NWPAMay 18, 2013 4:54 pm

@Jesse: Those are just electrons. Electrons are not 0 or 1. They are just electrons. It is impossible to look at an electron and even know if it even represents a 0 or a 1, since the representation can be for either symbol.

Jesse: You are confusing things again with what is going on with your brain. The electrons are being transformed. How we interpret that is up to us. The fact is we can interpret the transformed electrons as having sorted items (for example), or as a number.

There is nothing abstract about the electrons being transformed and the physicality of the electrons or the time, space, and energy it takes to transform the electrons. You may argue that words that are used to describe the transformation are abstract, but so what? That is a minor issue of semantics.

The fact is that the computer is not math because it is a machine that is performing a transformation.

You have to deal with what I just wrote. The rest of it follows from what is above.

(Oh, and by the way, I have already written a version of the paper and it was given top marks by one of the top professors who also wrote one of the top book on patent law.)

NWPAMay 18, 2013 4:55 pm

@Jodi: thank you. It gives me comfort to know that you are out there.

NWPAMay 18, 2013 4:57 pm

I have also had loopy arguments with Richard Stern the architect behind Benson. I can smell some of his logic in your posts.

NWPAMay 18, 2013 4:58 pm

@Jessse and Mike:

Actually, the two of you are motivating me to push this argument MUCH harder. It is outrageous that the judges of the Fed. Cir. don’t understand this.

NWPAMay 18, 2013 5:01 pm

@Jesse and Mike:

Both of your problems appear to be the same as J. Stevens. You don’t know what your brain does and seem to think that math is floating out there in the ether and not made up by your brain. Frankly, it is shameful for you to hold these views in 2013.

jesseMay 19, 2013 5:28 am

@Jodi

Jesse,

Another contradiction in the same post:

You do have to realize that a REPRESENTATION of a thing is not the thing itself. That is why you cannot touch it.

and

Processing a grain of wheat gives you flour. Not numbers.

If it helps you, think of wheat as a “representation” of an arrangement of molecules and atoms. Those same molecules and atoms and be broken down and used to form other “representations” (like soil, silicon, computer chips, etc…). Data/software is “represented” as electrons arranged in a specific way. Once data/software enters a computer, it takes the form of electrons.

So you are patenting what – the wheat?

Electrons are physical. Physical is patentable.

So patent the electron… Right, you can’t – it is a natural phenomena.

jesseMay 19, 2013 5:41 am

@Jodi

przemoli said:

Shame on you for such lies:

“What is your proof? You have the burden of proof since all objective evidence suggests otherwise. ”

EU do not have patent on software, and we do not die out of starvation in IT sector here. In fact one can not see much difference between how IT advances in EU and in US.

Then why do so little major companies come out of Europe when compared to the U.S.? Just in the last 50years there are hundreds if not thousands that Europeans all use (Xerox, Kodak, Apple, Google, Facebook, VeriSign, Qualcomm, Twitter, Amazon, ……………)

Because MS and a few others have monopolized entry?

Xerox existed far longer than software patents, as have Kodak. Google, Facebook, Twitter, and even Amazon are based on nonpatentable technology.

I suppose you never heard of Nokia (though Nokia is now essentially just another arm of Microsoft), Ikea, … You never heard of the financial markets either? Or Barclays, Lloyd’s of London?

Don’t get out much do you.

jesseMay 19, 2013 6:03 am

@NWPA

@Jesse: Those are just electrons. Electrons are not 0 or 1. They are just electrons. It is impossible to look at an electron and even know if it even represents a 0 or a 1, since the representation can be for either symbol.

Jesse: You are confusing things again with what is going on with your brain. The electrons are being transformed. How we interpret that is up to us. The fact is we can interpret the transformed electrons as having sorted items (for example), or as a number.

REALLY? Physicists would love to know that electrons can be transformed into something else. They would love to know what that something else is.

There is nothing abstract about the electrons being transformed and the physicality of the electrons or the time, space, and energy it takes to transform the electrons. You may argue that words that are used to describe the transformation are abstract, but so what? That is a minor issue of semantics.

That is total nonsense.

The fact is that the computer is not math because it is a machine that is performing a transformation.

The only physical transformation done is to convert electrical energy into heat.

You have to deal with what I just wrote. The rest of it follows from what is above.

Fantasy perhaps. Not even good science fiction.

(Oh, and by the way, I have already written a version of the paper and it was given top marks by one of the top professors who also wrote one of the top book on patent law.)

LOL, ignorant to the ignorant maybe?

jesseMay 19, 2013 6:07 am

@NWPA

@Jessse and Mike:

Actually, the two of you are motivating me to push this argument MUCH harder. It is outrageous that the judges of the Fed. Cir. don’t understand this.

They are learning though. That is why they are changing their rulings.

jesseMay 19, 2013 6:11 am

@NWPA

@Jesse and Mike:

Both of your problems appear to be the same as J. Stevens. You don’t know what your brain does and seem to think that math is floating out there in the ether and not made up by your brain. Frankly, it is shameful for you to hold these views in 2013.

I’m sure you can save all those neurologists research time by telling them “what your brain does”.

Frankly, it is shameful for you to hold these views in 2013.

jesseMay 19, 2013 6:35 am

@Jodi

An additional thought on the abstract…

Data/software is “represented” as electrons arranged in a specific way.

Do you mean like this other abstract concept called “writing” which is based on (but not limited to) “ink arranged in a specific way” on paper?

AnonMay 19, 2013 10:14 am

“have monopolized entry”

easy choice – pay for what someone else invented or innovate around it.

AnonMay 19, 2013 10:19 am

“Do you mean like this other abstract concept called ‘writing’… ”

I have addressed the ‘writing’ aspect as the law now governs jesse – the concept of the exceptions to the printed matter doctrine. Funny that you chose not to address that point, but still feel “comfortable enough” to raise it again here.

Please try to realize how illogical this mode of arguing of yours is.

jesseMay 19, 2013 11:21 am

@Anon May 19th, 2013 10:19 am

“Do you mean like this other abstract concept called ‘writing’… ”

I have addressed the ‘writing’ aspect as the law now governs jesse – the concept of the exceptions to the printed matter doctrine. Funny that you chose not to address that point, but still feel “comfortable enough” to raise it again here.

Please try to realize how illogical this mode of arguing of yours is.

Please try to realize how illogical your statements are.

“The Supreme Court has stated that anything under the sun that is made by humans with the exception of; laws of nature, natural phenomena, abstract ideas, and humans themselves, fall within the patentable realm.”

So abstract ideas are excluded. And writing, of all things, is an abstract idea. I don’t really care if judges were lied to or bamboozled into thinking writings are patentable. Just saying so, does not make it logical.

MikeMay 19, 2013 11:37 am

@NWPA:

And, at this point I think Mike and Jesse are being intellectually dishonest and I suspect they are not who they claim to be.

Right. So far I haven’t claimed to be anybody in particular, but I’m “not who I claim to be”.

NWPAMay 19, 2013 11:37 am

@Jesse wrote
“Because MS and a few others have monopolized entry?
Xerox existed far longer than software patents, as have Kodak. Google, Facebook, Twitter, and even Amazon are based on nonpatentable technology.
I suppose you never heard of Nokia (though Nokia is now essentially just another arm of Microsoft), Ikea, … You never heard of the financial markets either? Or Barclays, Lloyd’s of London?
Don’t get out much do you.”

Jesse, what a load of nonsense. So, Nokia is actually proof that patents are helpful. Nokia did well until it took software to win the handset game. When you needed innovative software, Nokia lost. And gave over there software development to Microsoft. Jesse: it is clear at this point that you have some agenda to push. You aren’t going to be convinced because you have a hidden agenda. You aren’t going to be shamed for your ridiculous arguments because you have a hidden agenda and don’t care if you are wrong.

jesseMay 19, 2013 11:44 am

@Mike

@NWPA:

And, at this point I think Mike and Jesse are being intellectually dishonest and I suspect they are not who they claim to be.

Right. So far I haven’t claimed to be anybody in particular, but I’m “not who I claim to be”.

Thats the problem with their logic… It is so much like the creationists or flat earthers.

AnonMay 19, 2013 11:51 am

“Please try to realize how illogical your statements are.”

My statements are not illogical. Quite the contrary, it is you that insists on being illogical.

I have given you the controlling doctrine of law – and you have no replies to that doctrine, other than your “feelings” and “desires.” You have no logical and legal counter.

I have given you the Supreme Court case directly after affirming from you the status of the Arrhenius equation. Your merely desired end view of law is shown not to hold. Yet you insist on a version of law that is not in accord with reality.

Please – if you want to try to have a conversation, you need to understand the terrain of the subject matter. Having disdain for that subject matter only hurts your agenda and viewpoint.

jesseMay 19, 2013 11:54 am

@NWPA

Jesse, what a load of nonsense. So, Nokia is actually proof that patents are helpful.

I have never said patents were not. I have said “software patents” are not helpful. Nokia had a lot of decent patents…

Nokia did well until it took software to win the handset game. When you needed innovative software, Nokia lost.

No – Nokia had several potential candidates, and nearly ready for release. Until it was all thrown away by what looks like a MS mole.

And gave over there software development to Microsoft. Jesse: it is clear at this point that you have some agenda to push. You aren’t going to be convinced because you have a hidden agenda. You aren’t going to be shamed for your ridiculous arguments because you have a hidden agenda and don’t care if you are wrong.

Nokia had a number of very good projects.

I have just seen nothing to convince me that about 2,500 years of mathematics thought is “real”. Just lots of noise and illogic trying disguise the fact that mathematics is abstract.

AnonMay 19, 2013 11:54 am

“ It is so much like the creationists or flat earthers.”

This statement has no meaning in the present context. Quite in fact, jesse, it is you that portrays the “flat earthers” as you continue to spout a party line with no cogent support for that party line. That you do not realize this is more than just a little amusing.

AnonMay 19, 2013 11:57 am

jesse,

You continue to ignore the fact of machine components are real. That software is a machine component. This is both a physical fact and a legal holding.

You continue to “see nothing” because you have chosen to see nothing. That you will continue to so chose does not change reality.

AnonMay 19, 2013 12:00 pm

“ Until it was all thrown away by what looks like a MS mole.”

Even setting aside the “conspiracy” mode of this comment, it does not address the salient point. jesse, you need to take a step back and look at how you are coming across. Use some logic – not just spout the party line.

MikeMay 19, 2013 12:02 pm

@NWPA:

Because the bit is represented by electrons.

A bit can be represented by electrical signals, but there is nothing in the nature of a bit that mandates a specific electrical signal, nor even that it be represented by an electrical signal. A bit can be represented by ink on paper, among many other ways. If I use my finger to point to the moon, my finger doesn’t magically become the moon, any more than an electrical signal being used to represent a bit becomes a bit. It remains a representation.

It has physicality.

Its representation is physical. A bit itself is not.

The electrons are not abstract.

Are the electrons what are being patented here? Can you even provide a precise description of the electrical signals involved in sorting some integers according to a particular algorithm? Of course you can’t. There are many ways to construct a computer, so whatever physical transformations may take place are completely unspecified.

The transformation from say sorted to unsorted is not abstract.

The sorted and unsorted information, as well as the algorithm for sorting and the intermediate transformations of information are completely abstract.

That is every bit as “real” as processing a grain of wheat.

Even if I granted that bits were physical electrical signals (rather than often being represented by them), I can see no reason to compare an electrical signal to a grain of wheat.

And, don’t be ridiculous. A number 1 must be represented by the neurons of our brains. Just because I can’t point to it, doesn’t mean it doesn’t exist.

I’m not sure what you think is ridiculous. I can’t see what you’re trying to prove by talking about a particular representation of the number 1. You do understand that an abstract concept can have multiple simultaneous physical representations, right?

Wayne BoreanMay 19, 2013 12:09 pm

Jesse, what a load of nonsense. So, Nokia is actually proof that patents are helpful. Nokia did well until it took software to win the handset game. When you needed innovative software, Nokia lost. And gave over there software development to Microsoft.

It is obvious none of you know anything about the handset market. Nokia was the fastest growing maker of smartphones, and had the largest market share in smartphones, until they partnered with Microsoft. It is known it the Industry as the “Elop Effect” after the name of the CEO who made the massive strategic mistake which brought the company down.

Yes, Nokia was doing way better than Apple, Samsung, and EVERYBODY else in the Smartphone market combined. Until they partnered with Microsoft. For a good analysis check out the Communities Dominate Brands blog where Tomi Ahonen, an ex-Nokia employee, and author of several industry books, has chronicled the disaster.

So, did Nokia need patents? Good question, and not one anyone is going to be able to answer in a comment. It would take at least 20,000 words to do justice to the situation in my opinion.

Wayne

jesseMay 19, 2013 12:28 pm

@ANON

“ It is so much like the creationists or flat earthers.”

This statement has no meaning in the present context. Quite in fact, jesse, it is you that portrays the “flat earthers” as you continue to spout a party line with no cogent support for that party line.

Oh, I gave it, and references to it. You just didn’t read it.

That you do not realize this is more than just a little amusing.

It is what tells me you are deliberately ignorant.

NWPAMay 19, 2013 12:34 pm

@Wayne: It is obvious none of you know anything about the handset market.

Wayne, but I do. Why did Nokia partner with Microsoft? Because they had blown it with their smart phone and operating system. They became desperate. They did not innovate.

NWPAMay 19, 2013 12:37 pm

@Jesse: I have just seen nothing to convince me that about 2,500 years of mathematics thought is “real”. Just lots of noise and illogic trying disguise the fact that mathematics is abstract.

We are talking about machines that are performing tasks people did or tasks people can’t. Your statement above seems mental to me.

NWPAMay 19, 2013 12:41 pm

@Jesse: No – Nokia had several potential candidates, and nearly ready for release. Until it was all thrown away by what looks like a MS mole.

Yeah, yeah, yeah. Whatever. Fact is software innovation determined the winner in the handset market. Nokia failed. You are becoming a typical troll. You take one of the best pieces of evidence against your argument and begin by claiming it illustrates your point. You aren’t even decent enough to acknowledge that Nokia’s failure clearly is an illustration of software failure on the part of the largest handset manufacturer in the world. A total failure of innovation.

Only a troll would try to flip that.

jesseMay 19, 2013 12:42 pm

@NWPA

@Wayne: It is obvious none of you know anything about the handset market.

Wayne, but I do. Why did Nokia partner with Microsoft? Because they had blown it with their smart phone and operating system. They became desperate. They did not innovate.

They had, and were. Yes, the company was in a bit of a bind, but they had really good products – but the new CEO killed all of it, good projects and bad. All that was needed was to finish it.

Even now they are getting more from their old products than they are getting from WP8.

I really wanted the next generation of the N900 – LOTS of people did. Even went so far as to start saving up (didn’t really want or need the cell phone part).

jesseMay 19, 2013 12:43 pm

@NWPA
“Only a troll would try to flip that.”

Didn’t have to flip that – Elop clearly destroyed the company.

NWPAMay 19, 2013 12:47 pm

@Wayne So, did Nokia need patents? Good question, and not one anyone is going to be able to answer in a comment. It would take at least 20,000 words to do justice to the situation in my opinion.

What we do know is that there are naked assertions (supported by some outrageous papers of nonsense) that software patents are bad and yet we have had software patents for close to 20 years (longer of course, but a lot of them for about 20 years), and instead of innovation being stifled–WE HAVE THE GREATEST INNOVATION MACHINE IN THE WORLD IN SOFTWARE. But, intellectual dishonest, or ignorant, or paid off scum, or media hungry clowns, or Posner judges that want an appointment to the supreme court, are telling us the system is broken.

A machine that is performing a task is called abstract? That must be the most disingenuous labeling in modern history of innovation. Imagine: an inventor comes up with a machine. Brings it to your office. It performs amazing tasks that people used to perform, or tasks that people can’t even perform. They want a patent. You tell them sorry you can’t patent that. The judges are going to claim there is an abstraction inside there or that math is inside there. It is right out of a medieval trial using torture.

NWPAMay 19, 2013 12:50 pm

@Jesse: Didn’t have to flip that – Elop clearly destroyed the company.

Yeah right.

NWPAMay 19, 2013 12:53 pm

@Jesse: I really wanted the next generation of the N900 – LOTS of people did

Fact is–no patents. They lost. You pull excuses out of your $$%^# all you want. You are a troll. You are taking one of the best examples of the failure of innovation destroying a company in the last 20 years and trying to turn it to your side. That is clearly troll behavior. But, you are in good company: Lemley, Posner, Lourie, and the rest of the medieval scum squad.

NWPAMay 19, 2013 1:00 pm

@Jesse:

I’ll make one other observation about you. You are very arrogant. It is the same thing we see in the Posner, Lourie, Lemley, and the other anti’s. We the people that understand the power that patents offer to give incentive don’t try to judge things like whether Nokia’s latest operating system was innovative. Rather we look at what the market did to them. Just as we don’t try to judge inventions with hindsight. A hallmark of the Lemleys and Posners is that they think they can look back and judge inventions in highsight.

jesseMay 19, 2013 1:02 pm

@Anon

@Jesse: I have just seen nothing to convince me that about 2,500 years of mathematics thought is “real”. Just lots of noise and illogic trying disguise the fact that mathematics is abstract.

We are talking about machines that are performing tasks people did or tasks people can’t.

The machines you refer to are called processors. Patenting the implementation of an abstract mathematical concept is not a problem (requires a transformation of matter). I have no issue with it. The abstract mathematical concept is the instruction cycle. You can’t patent that, due to prior art (about 80 years worth) and that it is part of mathematics, you do get to patent YOUR SPECIFIC IMPLEMENTATION as that is your tangible property. A “composition of matter”.

Because of the very nature of the mathematical algorithm implemented (designed to compute any computable function) you can’t patent what function you want – that would already be covered by the mathematical algorithm implemented. It is also “discovered” through mathematical analysis of a given problem. The inputs and results of all computation are just abstract symbols….

Again, I am NOT talking about devices that translate between the abstract into reality or reality into the abstract. These are patentable.

This happens to be the bottom of that “ladder of abstraction” NWPA keeps going on about. Anything higher than that though is abstract, and excluded from being patented.

Your statement above seems mental to me.

Thats what all mathematics is

Wayne BoreanMay 19, 2013 1:08 pm

Author: NWPA
Comment:
@Wayne: It is obvious none of you know anything about the handset market.

Wayne, but I do. Why did Nokia partner with Microsoft? Because they had blown it with their smart phone and operating system. They became desperate. They did not innovate.

Check out the price that Nokia N9 smartphones are selling for right now. Phones that are no longer on the market. A phone that a German magazine recommended its readers drive to Switzerland to buy because it was far better than the iPhone. A phone that Nokia refused to release in many markets, even though there was a huge demand.

Nokia was in good shape until Elop made his deal with the devil. Now? It’s trash. The patents aren’t even worth anything, because everyone else in the industry has equivalent patents. Just ask Motorola and Samsung.

Heck, Nokia owned Africa. They owned China. They owned India. Here in North America they might not have been well known, but North America is a small market.

Wayne

NWPAMay 19, 2013 1:17 pm

@Wayne:

Sure Wayne, by proclamation all the patents are worthless, and by your analysis Nokia lost because of one person making a mistake. OK. And, the Earth is at the center of the universe ’cause you and Jesse say so.

And, instructions on a computer that transform represented information using time, energy, and space, are math and abstract. Sure.

NWPAMay 19, 2013 1:46 pm

@Wayne and @Jesse:

You are also making an assumption that not having patents did not affect the decision maker or the decision making process, or who was promoted to make decisions.

AnonMay 19, 2013 1:46 pm

Mike,

Do you believe in copyright?

Do you understand the legal requirements for copyright?

AnonMay 19, 2013 2:03 pm

“It is what tells me you are deliberately ignorant.”

From the person who has deliberately ignored points of law…?

Really?

AnonMay 19, 2013 2:11 pm

“ are just abstract symbols”

Can you copyright “abstract symbols?” – Then there must be something more, right?

jesse, you keep on spinning in the same mantra, never getting to points of law.

It’s rather humorous to see someone who prizes “logic” so much act so irrational.

AnonMay 19, 2013 2:12 pm

“ Anything higher than that though”

No. Most decidedly not. I have given you the case on this – why do you continue to insist otherwise? You are acting irrational.

jesseMay 19, 2013 5:42 pm

@NWPA

@Wayne So, did Nokia need patents? Good question, and not one anyone is going to be able to answer in a comment. It would take at least 20,000 words to do justice to the situation in my opinion.

What we do know is that there are naked assertions (supported by some outrageous papers of nonsense) that software patents are bad and yet we have had software patents for close to 20 years (longer of course, but a lot of them for about 20 years), and instead of innovation being stifled–WE HAVE THE GREATEST INNOVATION MACHINE IN THE WORLD IN SOFTWARE.

Where? The most innovative software in the world today it Linux.
Imported simply because Linus chose to move to the US.

But, intellectual dishonest, or ignorant, or paid off scum, or media hungry clowns, or Posner judges that want an appointment to the supreme court, are telling us the system is broken.

Speaking the truth is not wrong.

A machine that is performing a task is called abstract? That must be the most disingenuous labeling in modern history of innovation.

Only when that task is abstract and the results are abstract.

Imagine: an inventor comes up with a machine. Brings it to your office. It performs amazing tasks that people used to perform, or tasks that people can’t even perform. They want a patent. You tell them sorry you can’t patent that. The judges are going to claim there is an abstraction inside there or that math is inside there. It is right out of a medieval trial using torture.

If they bring a machine, a processor, in other words “a composition of matter”, then there should be no problem.

When they bring in a mathematical algorithm and claim that is a machine, then they should be laughed out of the office.

jesseMay 19, 2013 5:44 pm

@NWPA

@Jesse:

I’ll make one other observation about you. You are very arrogant. It is the same thing we see in the Posner, Lourie, Lemley, and the other anti’s. We the people that understand the power that patents offer to give incentive don’t try to judge things like whether Nokia’s latest operating system was innovative. Rather we look at what the market did to them. Just as we don’t try to judge inventions with hindsight. A hallmark of the Lemleys and Posners is that they think they can look back and judge inventions in highsight.

We that understand that mathematics is not a patentable field just want the law obeyed.

jesseMay 19, 2013 5:48 pm

@NWPA

And, instructions on a computer that transform represented information using time, energy, and space, are math and abstract. Sure.

Truth hurts.

The machine that exerts that time, energy, and space, is fully patentable, and is not abstract. It is a composition of matter.

The instructions are not. They are just collections/organized sequence of symbols. Just like recipes.

jesseMay 19, 2013 6:02 pm

@NWPA

@Wayne and @Jesse:

You are also making an assumption that not having patents did not affect the decision maker or the decision making process, or who was promoted to make decisions.

No, that got dismissed early in the revelation of Elops plan. He just didn’t like the cost of development. Nokia was just going to build phones for MS.

Didn’t work out very well with that WP 7 did it. MS just dumped them in the toilet.

jesseMay 19, 2013 6:05 pm

@Anon

“ are just abstract symbols”

Can you copyright “abstract symbols?” – Then there must be something more, right?

Sure can. ANYTHING written is automatically copyrighted now days. It used to be harder – you had to actually REGISTER the copyrighted work before it could be called copyrighted.

AnonMay 19, 2013 6:42 pm

“ANYTHING written is automatically copyrighted now days”

That would be false – I have already explained this, jesse. Your logic and disregard for the law continues to show.

Are you familiar with the phrase “put the shovel down?”

MikeMay 19, 2013 8:29 pm

@Anon:

“ Anything higher than that though”

No. Most decidedly not. I have given you the case on this – why do you continue to insist otherwise?

I have never heard of an “abstraction ladder” being referred to in a court case. Which case are you referring to?

MikeMay 19, 2013 8:45 pm

@Anon:

Do you believe in copyright?

I think it is more reasonable than patent law (at least WRT software), although I certainly don’t think it makes complete sense (lifetime of the author + how many decades now?).

Do you understand the legal requirements for copyright?

Not in great detail, although I have read a few things about it. I followed a court case that largely depended on where the line of copyrightability was drawn for software, and it seemed that the law was followed and that it made decisions that made sense.

MikeMay 19, 2013 8:51 pm

@Anon:

I have given you the Supreme Court case directly after affirming from you the status of the Arrhenius equation.

You never said why you were referring to Diehr. Do you really think it supports the patenting of algorithms?

Wayne BoreanMay 19, 2013 9:43 pm

@NWPA

What we do know is that there are naked assertions (supported by some outrageous papers of nonsense) that software patents are bad and yet we have had software patents for close to 20 years (longer of course, but a lot of them for about 20 years), and instead of innovation being stifled–WE HAVE THE GREATEST INNOVATION MACHINE IN THE WORLD IN SOFTWARE. But, intellectual dishonest, or ignorant, or paid off scum, or media hungry clowns, or Posner judges that want an appointment to the supreme court, are telling us the system is broken.

All the really interesting development in software is happening in the Free/Open Source Software Community now. Everything that Apple included on the iPhone, that Microsoft included in Windows 8, that Blackberry included in BB10, was introduced in Linux or BSD years ago. In some cases it was introduced on the Atari ST or Amiga computers way back, and only now is making it into the mainstream.

I have an antique P3 here that I use as a file server. It runs a brand new OS, that is a total speed demon, and has tons of features, including stuff that Windows and OSX don’t have yet. My laptop has the newest version of OSX installed, and I’ve done work on a computer owned by a dear friend who made the mistake of installing Windows 8. I’ve compared the systems, and Linux wins hands down.

Why do you think that Linux powers the majority of cell phones sold? Simple. Because it’s the best. Yes, Android is Linux.

A machine that is performing a task is called abstract? That must be the most disingenuous labeling in modern history of innovation. Imagine: an inventor comes up with a machine. Brings it to your office. It performs amazing tasks that people used to perform, or tasks that people can’t even perform. They want a patent. You tell them sorry you can’t patent that. The judges are going to claim there is an abstraction inside there or that math is inside there. It is right out of a medieval trial using torture.

It might be abstract. Or it might fail under Sections 102 and 103. In either case if it contravenes the law, it fails.

I agree that most judges don’t understand tecnology. Most lawyers don’t either. Just as most technologists don’t understand law.

Wayne

Wayne BoreanMay 19, 2013 10:01 pm

Anyone interested in Nokia should Google the term “Elop Effect”

There are a lot of articles covering exactly what happened, including the exact sequence of events.

Part of the problem is that Microsoft is not competitive in operating systems, and never have been when there is free competition in the market. In the PC market they were able to leverage the IBM deal to gain effective monopoly control (see the DOJ antitrust case), and push everyone else out (see the Novell Wordperfect lawsuit against Microsoft, and the Caldera DR DOS lawsuit against Microsoft).

In MP3 players, game consoles, TV set top boxes, mobile phones, tablet computers, embedded systems, and industrial controllers, Microsoft has always struggled. The best Microsoft was able to do in smartphones was 23% of the market just before the iPhone was introduced, mostly in North America. Nokia owned the smartphone market everywhere else.

Apple’s iPhone crippled Windows Mobile in North America, while leaving Symbian untouched in Europe, Asia, South America, and Africa. Android pretty well finished off the hopes of Microsoft in mobile, as Bill Gates himself admitted.

The problem is costs. Adding a Microsoft OS to your bill of material pushes your costs up to where you aren’t competitive. Microsoft could probably afford to give away Windows for the Desktop market – check their SEC filings. They make more money from Office than they do from Operating Systems.

The problem is that Office doesn’t sell into Mobile. I know a guy who write a novel using his iPhone. Personally I think he is a lunatic. The small screen would kill my nearly 60 year old eyes. He wanted to prove he could do it, and he did, using Apple’s Pages word processing software.

But he’s an oddball. Most people don’t install word processing software on their smartphones or tablets. And when they do, they don’t pay much. Apple charges $10.00 for Pages, and Microsoft can’t afford to sell Word that cheaply.

Microsoft Windows RT also requires pretty hefty hardware. To get the same performance as an iPad, you require a far more powerful processor, and bigger battery. That increases the cost, which kills sales. Why pay more, when you can buy an iPad for less? Oh, and Windows eats up a ton of space compared to IOS or Android, so you have less space for video, pictures, etc.

Patents aren’t helping Microsoft, because the company is incompetent. Patents didn’t help Nokia, because they hired an ex-Microsoft executive, who was incompetent.

Samsung and Apple are selling tons of kit. Patents aren’t helping them either. You’ll note that the court cases about those patents are still in the system, not final…

Until the cases are final, no one pays. Until someone pays, the patents aren’t paying off, are they?

Wayne

AnonMay 19, 2013 10:17 pm

Mike,

Yes. Everything else in Diehr was old in the art. What that case boils down to was using a math equation (by a computer) to recalculate timing output from ever new temperature inputs.

As to copyrights, a pertinent factor (which I have previously noted) is capturing in tangible media. Combine that notion and the notion of the exceptions to printed matter, and you have your machine component.

All of this is really quite logical.

jesseMay 19, 2013 11:24 pm

@Anon

“ANYTHING written is automatically copyrighted now days”

That would be false – I have already explained this, jesse. Your logic and disregard for the law continues to show.

Every thing is assumed to be copyrighted – no matter how trivial. As it happens, it has to be decided in court for each occurrence.

That is why every source file (other than those with nothing but statements of fact, and even then) has a copy right notice. The copyright notice is usually right close to the beginning of the documents/files.

If not, just what WAS that Oracle v Google lawsuit about?

Are you familiar with the phrase “put the shovel down?”

Are you familiar with being wrong?

jesseMay 19, 2013 11:41 pm

@Anon

Mike,

Yes. Everything else in Diehr was old in the art. What that case boils down to was using a math equation (by a computer) to recalculate timing output from ever new temperature inputs.

As to copyrights, a pertinent factor (which I have previously noted) is capturing in tangible media. Combine that notion and the notion of the exceptions to printed matter, and you have your machine component.

So you are saying that a program printed in a book makes that book a “machine component”?

All of this is really quite logical.

No, it doesn’t appear so.

AnonMay 20, 2013 7:00 am

“So you are saying that a program printed in a book makes that book a “machine component”?”

It very well might. To know for certain, one must apply the law. Perhaps you have heard of this thing called the exceptions to the printed matter doctrine.

While it is not likely as a man is not a machine, and a machine is not a man; and thus a program printed in a book is not likely formatted so as to have the necessary functional relationship that the exception requires, there can be no doubt that such properly formatted machine components – being composed of the written word – can be collected into a ‘book.’

Your argument fails because the law fully recognizes that patent eligibility is not negated just because the item may be in writing. This concept is your Achilles heel. No matter what else you may decide to want to believe, you must come to grips with this. Denial is not logical.

AnonMay 20, 2013 7:13 am

jesse asks “Are you familiar with being wrong?” and may have asked in a snide manner.

My reply is a gentleman’s yes. I am familiar enough with being wrong. Familiar enough so as to enable me to tell the difference between being wrong and being right. And to tell the difference when others are wrong or right on a topic of law. There are some clues, that I would point out: a haughty disdain for the law, an ignorance of what the law means, a refusal to accept points made as to what the law means, and a mindless worship of a desired end result that remains no matter what the law actually is (the ‘law must be wrong because I must be right’ syndrome).

Several points of law remain for you to address, jesse. So far, you have chosen games and avoidance. I cannot make you address these items in a cogent and logical manner. You must decide to do so. I can though, point out that you have not yet done so.

NWPAMay 20, 2013 8:08 am

@Wayne: Until the cases are final, no one pays. Until someone pays, the patents aren’t paying off, are they?

The patent system provides incentives and a broad framework. You analysis is inadequate.

@Wayne: All the really interesting development in software is happening in the Free/Open Source Software Community now.

Not true. Wayne you are very arrogant to believe that you can perform an analysis of the patent system or where the innovative software is coming from so easily.

@Jesse: OK, Jess, you are definitely a troll. A loopy troll.

jesseMay 20, 2013 10:15 am

@Anon

“So you are saying that a program printed in a book makes that book a “machine component”?”

It very well might. To know for certain, one must apply the law. Perhaps you have heard of this thing called the exceptions to the printed matter doctrine.

So every programming text book with printed software must go through court to find out if it is a component.

It also implies that every mathematical paper must go through a court for the same reason.

The problem is that there is no difference to whether it is printed in a book, on a floppy disk, or anywhere else. It is nothing but abstract information.

While it is not likely as a man is not a machine, and a machine is not a man; and thus a program printed in a book is not likely formatted so as to have the necessary functional relationship that the exception requires, there can be no doubt that such properly formatted machine components – being composed of the written word – can be collected into a ‘book.’

“properly formatted machine components” would include all source code. And by extension, all textbooks. Next, that would also include all English text because a proper subset of English can also be a programming language. (I believe LOGLAN is supposed to be such a subset: http://www.loglan.org/what-is-loglan.html).

LOGLAN itself was designed in the 1950s as a logical language for people to use. It was also designed to aid the translation of languages, and, as I recall, several compilers were developed for it (well, one or more).

This just one of the inconsistencies in the current law – but it directly goes to the incompatibility of patents and software.

Your argument fails because the law fully recognizes that patent eligibility is not negated just because the item may be in writing. This concept is your Achilles heel. No matter what else you may decide to want to believe, you must come to grips with this.

So mathematics is patentable just because it is written, and mathematics as a field are excluded specifically from patents.

Denial is not logical.

Right…. really logical. Try again.

AnonMay 20, 2013 11:57 am

“So mathematics is patentable just because it is written”

Try for a moment to stop spewing nonsense and merely repeating your mantra over and over again and try to understand the law involved.

The exceptions to the printed matter doctrine to which I have referred many times now are not a matter of “just because it is written.” There is no basis whatsoever for you to try to take that angle with the discussion.

jesse, if you cannot have an honest conversation, and if you insist on trying to obfuscate what is said – and what is the law, I will personally ask Gene Quinn to ban you from this site. This forum does allow those with conflicting views to post, but it does not allow the type of posting you are now engaging in. Do not misrepresent the law and do not misrepresent what I have posted.

JodiMay 20, 2013 12:57 pm

Jesse as part of his anti-patents religious ideology falsely propagated:

In my specific case, while I was an undergraduate, the RSA papers came to my advisor. He showed them to me. I thought they were very interesting, and requested some direction on learning how the mathematics functioned, and how it could be used. I was informed that anything I did would belong to RSA, and I would not be able to publish as anything published would be covered by the patents, and thus, not available for research or publication (publications would not accept such papers because they would be counted as “advertisements” and not research).

You’re going on so many false assumptions. Whoever advised you of this should be fired. You can read, learn from, publish research, build on patents all you like.

jesseMay 20, 2013 2:48 pm

@Jodi

Jesse as part of his anti-patents religious ideology falsely propagated:

In my specific case, while I was an undergraduate, the RSA papers came to my advisor. He showed them to me. I thought they were very interesting, and requested some direction on learning how the mathematics functioned, and how it could be used. I was informed that anything I did would belong to RSA, and I would not be able to publish as anything published would be covered by the patents, and thus, not available for research or publication (publications would not accept such papers because they would be counted as “advertisements” and not research).

You’re going on so many false assumptions. Whoever advised you of this should be fired. You can read, learn from, publish research, build on patents all you like.

Tell that to the government. It was them that told me this (specifically, NIST representatives at the time). Only government employees, and engineers working under government contract, can avoid this.

You CAN’T publish. Try publishing benchmarks between Windows and Linux – you will find you are not permitted. If you do, you get sued.

And you are NOT permitted to build a business on patents if the owner of those patents won’t license (Nokia, currently), assuming you can even find the patent in the first place.

Software engineers don’t have TIME to do such background – they are assumed to already know, or to derive what they need. They are not paid to read patents, they are paid to solve problems.

jesseMay 20, 2013 2:53 pm

@Anon

The exceptions to the printed matter doctrine to which I have referred many times now are not a matter of “just because it is written.” There is no basis whatsoever for you to try to take that angle with the discussion.

Why? If written programs are patentable as you say, then any written mathematical algorithm is subject to a patent lawsuit.

You have heard of optical scanners that convert printed matter haven’t you? That can just as easily (and has been) used to read programs.

jesse, if you cannot have an honest conversation, and if you insist on trying to obfuscate what is said – and what is the law, I will personally ask Gene Quinn to ban you from this site. This forum does allow those with conflicting views to post, but it does not allow the type of posting you are now engaging in. Do not misrepresent the law and do not misrepresent what I have posted.

No obfuscation or misrepresentation involved, just carrying out statements logically to the conclusion.

It is just that you don’t like the conclusion.

jesseMay 20, 2013 2:58 pm

@Jodi

Jesse:

It is even easier when the pro-software patent people ignore the experts in the field that actually developed the mathematics in their attempt to take over an abstract field of study EVEN when they are directed not to.

The field of study is called law and it happens to be what our society is based on. Live and worship and ignore the world around you all you want at your own expense.

What do you think happens when “Law” ignores reality?

1. It gets changed.
2. If it doesn’t get changed, it gets replaced, sometimes by force.

Right now, the law is getting changed as judges realize the illogic of the situation.

If the change doesn’t happen, and congress doesn’t replace it – those that suffer under it will leave the country for places more conducive to freedom.

MikeMay 20, 2013 4:09 pm

@Anon:

Yes. Everything else in Diehr was old in the art. What that case boils down to was using a math equation (by a computer) to recalculate timing output from ever new temperature inputs.

I just reread Diehr, and there were two parts, the majority and the dissent. The dissent said that since the only thing new was using a computer program to calculate the equation, it was a patent on software, so it was invalid. The majority said that the patent was on the process as a whole, so even though all the parts were individually old or unpatentable, the process as a whole was patentable. The only way I can see for you to reach your conclusion is to rip out the assumptions from the dissent and the conclusions from the majority.

As to copyrights, a pertinent factor (which I have previously noted) is capturing in tangible media. Combine that notion and the notion of the exceptions to printed matter, and you have your machine component.

I’ll have to look that up. I will say this, though: if the law actually does hold that software is a machine component, then the law is wrong and needs to be fixed.

Wayne BoreanMay 20, 2013 5:51 pm

Author: NWPA
Comment:
@Wayne: Until the cases are final, no one pays. Until someone pays, the patents aren’t paying off, are they?

The patent system provides incentives and a broad framework. You analysis is inadequate.

@Wayne: All the really interesting development in software is happening in the Free/Open Source Software Community now.

Not true. Wayne you are very arrogant to believe that you can perform an analysis of the patent system or where the innovative software is coming from so easily.

Of course I’m arrogant. I’m also providing an analysis. You aren’t.

Wayne

NWPAMay 21, 2013 1:47 am

@Wayne oviding an analysis. You aren’t.

I know that a condemnation of the patent system requires more than one guy telling us where innovative software comes from and silly economic analysis of patents.

I pointed out the flaws of your reasoning. That is an analysis. I know starting from a position of trying to convince you or Jesse is a losing position. And, I know it is enough to identify a few major flaws in someone else’s argument to discredit their argument.

AnonMay 21, 2013 7:24 am

Arrogance alone is unbecoming.

Arrogance without justification is doubly so.

Arrogance without justification, and being unable to recognize the lack of justification: mindless prattling.

Soren LanngJanuary 1, 2014 11:21 am

I think the main issue here, and perhaps the reason for the Federal Court enters this case – is the fact that on top of being a software patent, there is no human interaction + the technical problem solved is rather vague.

Strictly according to §101, and to the practice of §101 till today, the “innovation” is patentable. No doubt that the method includes interaction with a “machine”, but I have not seen any claims which include interaction with a user.

Which is where this type of patent is leaning heavily towards “abstract”, and I actually think that a software patent not involving interaction with a user shall meet much more strict criteria in order to be patentable.

I further think, that in case of software patents with no human interaction, the fundamental requirement of solving a “technical problem”, should be quite firm and restrictive. One could say that a method to solve an accounting problem, is a bit far away from the term “solving a technical problem”.

So all in all – this patent is indeed leaning very heavily towards “abstract”.

Question is, if the outcome of this will lead to a disaster for the group of software patents which lie well within §101, or if the outcome of this will be a combination of more strict requirement for human interaction, and the fundamental requirement of solving a technical problem ( together with a definition of what is considered to be a technical problem, and not, in software patents ).

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